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All posts by Ali Hart

Why pedestrians rightfully get their way

The Facts

A 53 year old man, Glenn Swainson, with a checkered work history had been down at a local pub drinking with friends for a number of hours when later that evening he decided it was time to go home, (at around 9pm).While he did have his bike with him, he decided not to ride home because he had been drinking. Glenn was going to try and hitch a ride.

At 9:30pm, he began the 6 kilometre walk from the pub towards his home. He was walking on the left hand side of the road with his back to the oncoming traffic.

After walking about 2 kilometres, Glenn decided to move onto the street to increase his chances of being picked up by a passing motorist. He was standing just inside the fog line (the line on the road between the lane and the curb).Glenn was hit by an oncoming car that failed to see him.

He suffered serious injuries including a compound knee dislocation, significant scarring and a psychological injury.

This case (Allianz Australia Insurance Ltd v Swainson [2011]) highlights just how high a standard of care a driver owes to a pedestrian.

The Initial Judgement

The judge found that had the driver seen Glenn earlier, moved to the right of Glenn or slowed down, the collision would have been avoided.After finding the driver negligent, the trial Judge determined that Glenn was partly responsible for his injuries and decided that his award of damages should be reduced by 40%.

This is also known as contributory negligence.

Beyond the Jargon

Click the term to reveal it's definition...

Contributory Negligence

Intoxication is often assessed by the Courts as an act of contributory negligence.The Judge determined that Glenn has contributed to his injuries because he:

  • was intoxicated at the time of the accident;
  • failed to walk on the footpath provided;
  • failed to walk on the right-hand side of the road so he was facing oncoming traffic; and
  • took a step into the path of the driver.

He was awarded just over $266,000 but this was reduced to $160,000 because of the finding of 40% contributory negligence.

“It was the plaintiff's conduct in standing very close to the edge of the left lane in a relatively dark area at night which initially created the danger. The first defendant's only fault was in failing to avoid that danger by keeping a proper lookout and slowing down or deviating”.

The Consequences

Both Judges agreed that the pedestrian, Glenn, contributed to his injuries because of his intoxication, but it doesn’t completely defeat the greater duty of care that is owed to pedestrians by drivers.

Motor vehicles need to exercise a very high degree of care when driving in the vicinity of pedestrians.

Drivers should be more aware of their surroundings depending on where they are driving. If they are driving in a built up area there’s more chance of person coming out in front of them from the side of the road.

Key Take Home Point:  Based on cases and the law in relation to pedestrians, it is clear that pedestrians have the right of way when it comes to drivers, even when alcohol is involved.

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When being drunk doesn’t matter

The Facts

Terence Miles was at the Robina Tavern on the Gold Coast for a birthday party with friends. Just before midnight, Terence was walking through the car park with his girlfriend Shari and two friends when a violent argument between Terence and Brock Williams erupted.

Brock was, at the time, driving through the tavern's car park. During the argument, Terence stood in front of the vehicle and refused to move. Brock responded by accelerating, driving over Terence’s legs, fracturing his left leg and right ankle.

These are the facts of The Court of Appeal decision of AAI Limited & Anor v Miles [2014].

The Initial Judgement

The trial judge believed that Brock breached his duty of care to Terence by choosing to accelerate rather than reverse out of Terence’s way. The key factor to this decision was that common sense should have told Brock that accelerating and striking a person would cause significant injury. Brock argued that Terence was drunk and contributed to his own injuries by failing to move out of the way. Expert medical evidence confirmed that Terence’s blood alcohol content (BAC) would have been about 0.04% at the time of the accident, below the legal limit to drive a car. The trial Judge, therefore, found that this was a low reading and that his “capacity to exercise proper care and control for his own safety” would not have been impaired. The Judge awarded Terence $750,000 at trial. 

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The Appeal

The matter was appealed by the insurer, Suncorp. They believed the Judge made the wrong finding and Terence should have been found partly at fault for his injuries.

 In claims in Queensland, contributory negligence is presumed when involving a person who was intoxicated at the time of the accident. However, a person can refute this by proving their intoxication did not contribute to the accident.

Beyond the Jargon

Click the term to reveal it's definition

Contributory Negligence


On appeal the insurer alleged contributory negligence against the injured party because of his alleged intoxication and the position he placed himself when the accident occurred.

Under the relevant act there is no definition for intoxication and it is open to interpretation by the Judge. Although if someone has a BAC of 0.15% or higher there will be an increased chance that the judge would assume some contributory negligence to the plaintiff.

The Court of Appeal agreed with the trial Judge and upheld the original judgment. The judgment also made mention of the injured person’s honesty about the amount of alcohol he had drunk that night.

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MCW Legal's Opinion

This case proves that the Courts have no hard and fast rules.

Determining contributory negligence when alcohol is involved must be considered on a case by case basis.

This decision reinforces how high the bar is set by the Courts to established contributory negligence in motor vehicle accidents. Anecdotal evidence just doesn’t cut it for these cases. 

Here, we could assume that spitting, hurling abuse and picking a fight with someone in a car park might be grounds to assume that they are drunk, but the Courts disagree with this ‘common sense’ approach.

Instead, had someone been under the influence of alcohol, there need to be good evidence that the plaintiff was intoxicated and that the intoxication contributed to the plaintiff’s injuries. Such evidence could include:

  • Ambulance records
  • Hospital records
  • Testimonies from bar staff on how many drinks were served and the state the injured person was in.

The Consequences

The findings in this case show just how difficult it is for insurers in proving negligence against claimants who were intoxicated.

It confirms that the Courts assess each matter on its own merits. Merely proving someone had alcohol in their system will not necessarily mean they contributed to the accident or their injuries. They must be able to prove that the person’s ability to exercise care and control for their own safety was impaired.


Written by Mitchell Herlihy | Associate 

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Young man’s foot cut off in jet ski accident receives $800,000

The Facts

Being young and care free sometimes has its consequences, as a young 18 year old found out in this case.
Nathan Whittington was water skiing with his friends Todd and Scott Smeaton at the Ross River reserve, near Townsville QLD. The three headed out on Todd’s jet-ski, with Ross driving and Nathan spotting.
Ross didn’t have a QLD marine license but did have a NSW boating licence. He also held marine insurance with Allianz for the use of the ski.
Nathan had been out on a boat two times prior to this day. Apart from this, Nathan had very little boating experience and had never been on a Jet Ski or water skiing.
With such limited experience Ross gave Nathan some instructions including to let the driver know if the skier fell off and if the towrope was not in use to pull it so it didn’t get caught in the Jet Ski’s propeller. Off the three went, with Todd skiing behind.

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Todd fell off and as instructed Nathan notified Ross to stop and he leaned forward to take the slack out of the rope. To do so, Nathan had to stand at the back ski. As Ross turned the ski around to collect Todd, they hit the wake of another boat and Nathan fell into the water.
His foot became tangled in the rope. Ross, unaware that Nathan had fallen into the water sped off and causing the rope to tighten and cut Nathan’s foot off.
Sadly, Nathan’s accident is common. In 2007, Jet Ski represent 20 percent of the number of fatal or serious accidents on QLD waterways.

 
Nathan brought a claim against the brothers (one the owner and the second the driver) and their insurer for his injuries.

The Judgement

The brothers initially argued that it was a dangerous recreational activity (a recreational activity where one may be injured) and that injury was an obvious risk.
The Court did not accept this as the Judge found that a person in Nathan’s position, riding the Jet Ski was not an activity with a significant risk of harm.
The insurer argued they were not liable under the policy because the driver did not have a QLD licence to drive the ski. The policy did have an exclusion clause stating that the policy did not cover accidents where the ski was being used by an unlicensed person.
Despite this, the Court found that the Insurance Contracts Act meant that the Insurer could not refuse to pay the insurance claim. This was because it was able to be proven that him being unlicensed was not related to the loss suffered by the Plaintiff. He had previously obtained a NSW boating licence and had ridden the ski hundreds of times.
The Insurer argued that had he taken the training course required when obtaining a QLD licence the accident was unlikely to have occurred. The Judge disagreed and said that obtaining a QLD licence would have made no difference given his experience and NSW boating licence.
The Insurer was ordered to pay damages of $800,000 with the majority of this being for economic loss and his impairment to his ability to work.

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MCW Legal’s Opinion

We agree with the Judge’s interpretation of the legislation in this case.
This legislation is in place for these circumstances where an insurer denies paying settlement on technical grounds and was correctly used in this case. Had he not held a NSW boating licence or had experience on a jet ski then the result would have been very different.

The Consequences

There are a number of consequences arising from this case. It highlights that serious accidents on water are more common than people think and it is important to have appropriate insurance.
It also highlights that insurers can’t just deny liability on a technicality, which is a win for policy holders.
It’s also a reminder that people should be aware of their policies of insurance and know exactly what they are covered for.


Written by Mitch Herlihy | Associate

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Woman slips on a greasy chip and is awarded $580,000

The Facts

Imagine going to a supermarket with a friend and your daughter to do your shopping when you slip on a greasy hot potato chip and suffer a serious injury to your spine…
…your injury completely changes every aspect of your life including your ability to care for your children.
Sounds dramatic but that is the unfortunate situation that happened to Kathryn Strong while she tried to do her shopping at a Big W at a shopping centre in Taree, NSW.
On 24 September 2004, Kathryn was inspecting pot plants outside the entrance to Big W. The store was under the care and control of Woolworths Limited. Being an amputee, Kathryn required the assistance of crutches. As she moved away from the plants, her right crutch landed on the greasy chip, throwing Kathryn off balance and causing her to land heavily on the floor.
Kathryn suffered serious spinal injuries as a result. Kathryn brought a claim against Woolworths Limited(Strong v Woolworths Ltd [2012] HCA 5).

The Judgment

Complaint

Kathryn said the grease mark was ‘as big as a hand’ and therefore easily visible. An employee should have seen it and removed it if they had a proper system of inspection and cleaning.
Woolworths acknowledged that it did not have an appropriate system in place on the day of the incident for the periodic inspection and cleaning of the sales area. However, they stated it was Kathryn’s responsibility to prove beyond doubt that the chip was on the floor for an ‘unreasonable’ amount of time and that it had caused her accident and subsequent injuries.

The District Court Case

The case was first heard before the district court who said,

“If other people could see [the grease mark] apart from the plaintiff after the event then it begs a serious question as to why it was not seen by an employee of [Woolworths] in those particular circumstances and it should have been removed by [Woolworths] … and if that had been done the [Kathryn] simply would not have come to grief. I can put it no more simply than that.

The primary judge awarded Kathryn an amount of $580,299.12

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The Court of Appeal Case

Woolworths appealed this decision to the New South Wales Court of Appeal, claiming that Kathryn had failed to provide enough evidence to prove that their actions (or lack thereof) were negligent.
Woolworths also believed that even if they had proper cleaning systems in place, it’s unlikely that they could have avoided all injuries. That is, even if they had someone cleaning every 15 minutes, they couldn’t guarantee a slip hazard wouldn’t present itself just minutes after and cause an injury.
The Court of Appeal agreed with Woolworths, stating that even if periodical inspections and cleaning had occurred, the chip may have been left between the last inspection and the time Kathryn slipped on it.
Therefore, Woolworths couldn’t be responsible for the injury and Kathryn’s case was overturned

The High Court of Australia Case

Kathryn then fought this decision in the High Court of Australia (the highest point of appeal).
The decision of the Court of Appeal was called into question.
The majority of the High Court found that there was no evidence to make a finding as to when the chip was dropped on the floor but they favoured a conclusion that the chip had been on the floor for longer than 15 minutes before Kathryn fell and as such, this was outside the ‘reasonable’ amount of time a hazard should be left untreated.
The High Court found Woolworths were negligent.
Ultimately, Kathryn was reinstated with her awarded amount of $580,000.

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MCW Legal’s Opinion

I completely agree with the findings of the High Court.
There was no evidence to prove when the chip had been deposited and on the balance of probabilities it was found that it had been there for longer than 15 minutes.
If the shopping centre had a proper system of inspection in place they would have detected the greasy chip and she would not have been injured. Without evidence to the contrary it is reasonable to conclude this.

The Consequences

This decision means that shopping centres need to have a proper cleaning system in place to detect potential slip and fall hazards.
It also means that if there is a lack of evidence to prove the link between a breach in duty of care from store owner’s and an accident, a person will not fail in making a claim.  This is particularly important as typically the burden of proof lies on the injured person rather than the store owner.
Based on these findings it means that for future cases it can be enough for a Plaintiff to prove their case if the court can find on the balance of probabilities that the injury would not have occurred had the defendant carried out their duty of care.
If you have had a slip and fall you must request to make an incident report. This is really important in establishing the details about the incident such as time of incident and who may have been rostered on to clean the area.


Written by Mitchell Herlihy | Associate

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Pedestrian awarded $1.6 million after being hit by motorcycle

Have you ever been walking across a street when a vehicle has come out of nowhere?
Have you ever thought about what might happen if you had been injured or worse, killed? Who gets the blame?

Let’s have a look at Troy’s story.

 

What Happened?

It was the silly season in 2008, and Troy had been out with friends having some drinks.
In the early hours of the morning, Troy and his mates decided to head home. He got into a taxi with a group of his friends around 2:30am.
About halfway through the journey, Troy decided to get out of the cab, as his friends were heading to the opposite side of town.
The taxi stopped in a turning lane, and Troy got out of the taxi to cross the road.
A witness recalls seeing a motorcycle come out of nowhere, travelling at speed. Troy was struck by the speeding motorcycle and suffered devastating injuries.
His list of injuries were extensive and include:

  • haemathorax (collection of blood in the space between the chest wall and lung) to his right side
  • Blood clot in his right chest wall
  • fracture to his right rib
  • dislocated collarbone
  • Damage to two arteries on right neck
  • Broken arm (to radius and ulna bones)
  • Nerve damage to right side of neck
  • Ligament damage to right lower leg
  • Twisted lower back
  • Broken and lost teeth
  • Burns to right fingers
  • Cuts to left brow
  • Scarring from surgeries to correct injuries
  • abrasion left eyebrow

Troy did not remember much of the evening. He did not remember how many drinks he had consumed but admitted to drinking for around 7 hours.

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Who was at fault for Troy’s injuries?

Queensland’s motor vehicle injury scheme is fault based, meaning that if you are at fault for an accident, you will not be able to recover damages.
Here, the court had to decide whether Troy was at fault for getting out of the taxi when it was unsafe to do so while he was intoxicated, or whether the motorcycle was at fault for failing to see Troy?
The insurer argued that if Troy were sober, he would have been able to react more quickly and could have avoided his injuries. They said he had been drinking for 7 hours, and he would not have crossed the road if he was sober.

What did the Court say?

The court disagreed, and said that it was:

Perfectly safe to get out of the taxi at that place and that time… A pedestrian has every right to walk on the road surface if he wishes … he must exercise ordinary care and prudence but he does not do so at his peril.

 The court found that there was no valid evidence to determine how much Troy had drank that night and whether or not he was intoxicated.
The court has been known to find claimant’s partially responsible for their injuries if they are intoxicated.
But here, the court recognised that Troy had been drinking but still held the motorbike was completely negligent. Troy succeeded 100%, and was awarded just under $1.6 million dollars.

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The Message

It is not always so easy to identify who is at fault for an accident. Many people believe that if they are struck by a car, they can only make a claim for personal injuries if it happens on a pedestrian crossing. This is not the case.
The court imposes a very high standard of care on the drivers of motor vehicles.
It has been said that motor vehicles are “lethal weapons”, and drivers are expected to be aware of pedestrians at all times.
Pedestrians are a vulnerable group, and because they have little protection, they are more likely to suffer tragic injuries or be killed in motor vehicle accidents, as shown in the graph below.


Written by Lucy Kelsey | Solicitor

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Woman receives $230,000.00 after suffering life threatening injuries in a boat crash

Facts

Campbell v Woollard [2012] WADC 48
On 17 November 2007, Kate Campbell and some friends decided celebrate the end of exams and the start of summer holidays by attending a school friend’s party.
The party was taking place on Luke Woollard’s fathers speed boat. Kate dragged her friend, Louise along. The two were having a ball, drinking wine and beer alongside the boys and soaking up the summer’s sun.  They had all been drinking since 4 pm.
The function started at 7 and finished at approximately midnight.
After the function, Luke and 2 friends decided to take the speed-boat back home.  They took 5 people with them including Kate.
Luke was driving the speed-boat and shortly before 1.00 am, it collided with the pylon of an unlit navigation beacon.
The seats Kate and Luke were sitting on were torn from their bearings and the left side of the boat was badly damaged.  Three of the passengers were thrown overboard and the others were flung about inside the boat.  Kate hit face-first into the console in front of her and suffered horrible injuries including a broken ankle, pelvis, vertebrae and jaw, a shattered larynx, torn oesophagus and eight missing teeth.
Kate would have died if she didn’t have emergency surgery. Her first 11 days in hospital were spent in intensive care in an induced coma or heavily sedated.
After her hospital stay she had a lot of rehabilitation.  She recovered from some of her injuries but still suffers from some physical and psychological disabilities.

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Boating Accident Statistics

A boating accident like Kate’s is extremely common. Every year thousands of people are seriously injured or killed in a boating accident, many of which were caused by negligence.  A large majority of boating accidents involve the driver of the boats drinking alcohol.
The table below shows the number of boating accidents for the years 2011 to 2015 in Queensland alone.
In 2015, the most commonly reported incidents were collisions between ships (28%), collisions with an object (10%), capsizing (11%) and groundings (12%).
Out of the 588 marine incidents in 2015, 98 people were injured including 19 who were admitted to hospital and 7 deaths.

The Judgement

Luke was charged and convicted. He was sentenced to a suspended term of imprisonment and ordered to perform 120 hours of community service.
Kate said that the collision was Luke’s fault because he drove the speed-boat without keeping a proper lookout and was driving too fast.
Luke said that he was too drunk to safely drive the speed-boat and that Kate knew this but still went on the speed-boat knowing the risks.  He said because she knew he was drunk he did not owe her a duty of care and also was not responsible for her injuries.
Further, Luke says that Kate was guilty of contributory negligence which means he thinks Kate contributed to her injuries by failing to take responsibility for her own safety.  He says that she knew he was drunk.  He says she turned down other offers of a lift home.  He said she knew it was dark and should have known he was too drunk to drive the speed-boat properly.
It is up to Luke to prove that Kate should be held partly responsible for her own actions and injuries.  Likewise it is up to Kate to prove that Luke should be held responsible for causing the accident and her injuries.

The Decision

The Judge considered Luke’s defences of ‘no breach of duty’ and ‘voluntary assumption of risk’.  In doing this he considered other cases relating to a passenger who accepts a lift with a driver known to be seriously drunk.
He said:

“The Court must be satisfied that the passenger not only knows, but also accepts, that he or she is to be driven by a driver who is seriously intoxicated (drunk).  So, the passenger must make a decision to travel as a passenger with a drunken driver, who to the knowledge of the passenger has an impaired ability to drive.”

Further, he said that the defence of ‘voluntary assumption of risk’ differs from the ‘no breach of duty’ defence in one important way, namely the passenger must have fully known the risk of what happened and accepted it.
He said a person is not liable for harm caused by them to another person if the other person engaged in a dangerous recreational activity and there is an obvious risk of harm when doing that activity.
 


Dangerous Recreational Activity (def.): A recreational activity is an activity engaged in for enjoyment, relaxation or leisure.  The term dangerous recreational activity means a recreational activity that involves a significant or obvious risk of harm.


 
An obvious risk of harm means a risk that would be obvious to a person even if the chances of it happening are low.
There was nothing to indicate to any of the passengers that there was any risk of harm in riding in the speed-boat.  The risk of an object being hit (like the beacon) in the protected waters of the river was very unlikely.  There was nothing to indicate that any great harm could come to anyone even if anything went wrong.
It was the Judge’s opinion that the level of risk associated with Luke’s drunkenness was very low.
He said…

“None of the passengers were negligent in accepting a ride in what was expected to be a leisurely cruise in a boat over known and basically deserted protected waters.”

The Judge found that Kate was intoxicated to some extent, but in no way did she place herself at risk.  She was alert to the need to take care for her own safety.
Therefore he didn’t consider Kate contributed to her own injuries by not taking care for her own safety.
Kate’s total award was $229,627.

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Expert’s Opinion

The decision of the Court is useful for people who have been injured in an accident who have accepted a lift with a driver known to be seriously drunk.
A lot of factors need to be taken into account, for example:

  • How drunk the driver is
  • How drunk the passenger is
  • The passenger’s knowledge of how drunk the driver is
  • The passenger’s appreciation of the driver’s level of impairment and/or intentions
  • The passenger’s other options available instead of accepting a lift with a driver who had been drinking

Just because you accept a lift with a person who is drunk it doesn’t been you are not able to make a claim if you are injured in an accident.

The Consequences

This decision is a positive outcome for people that are involved and injured in an accident when they have accepted a lift with a person who has been drinking.


Written by Chandelle Whitney | Associate

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How one simple mistake cost Jess half her compensation

It’s a favourite Australian past time for many, cruising our abundant waterways to marvel at the Australian landscape and wildlife. Usually, cruising our waters goes without a hitch and is a lovely day out for many Australians and tourists. However, the water can be a dangerous place even for the most skilled captains, as Jess and her family soon discovered…

The Facts

(Lormine Pty Limited & Anor -v- Xuereb [2006])

It was a sunny morning in November when Jess and her husband took their three kids on dolphin watching cruise in Forster, NSW. They were promised the cruise would visit a unique pod of resident dolphins, which reside in the calm ocean waters 10 minutes offshore. Jess and her family boarded the boat. The Captain handed Jess a form and asked her to tick the number of guests in their group and sign at the bottom to waive the operation of its liability surround ‘diving and scuba related activities’. The boat travelled out to the pack of dolphins and moored in what was described as the ‘wave zone’ to allow passengers to snorkel. The captain of the boat invited those not snorkeling to sit on the bow of the boat to view the dolphins whilst he assisted the other passengers with their preparations to enter the water and swim with the dolphins. Whilst Jess was sitting on the bow of the boat with her daughter, a large wave crashed over the bow of the boat. Jess was thrown to the back of the boat and was seriously injured. She suffered:

  • a fracture to her right knee cap;
  • a fracture to her right rib;
  • an injured left hip;
  • an injured right ankle and foot; and
  • ongoing depressive mood.

Consistent pain from her injuries crippled Jess, forcing her to reduce her hours at her job. Eventually she decided to raise a claim against the boat owner and the captain to replace her lost income and superannuation.

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Jess’ accident is not uncommon. You may be surprised to know that the majority of accidents don’t happen in rough seas – it’s not like what you imagine from the movies. Most reported incidents actually happen on smooth waters (see graph below on marine incidents in QLD).

The Initial Judgement

There were two contested issues at trial.

  1. Jess signed a waiver upon boarding the boat that the boat owner claimed excluded them from liability.
  2. The trial judge had to determine whether the Captain owed Jess a duty of care

Waiver

The captain and boat owner tried to avoid liability by claiming that Jess signed a waiver stating they were exempted from responsibility to Jess’ decision to move to the front of the boat. Jess argued that the waiver wasn’t fully explained to her and that she thought its purpose was simply for determining passenger numbers. The trial judge agreed with Jess, saying the waiver was…

“So ambiguous both in its overall context and standing alone that I am unable to interpret it as a release of claims for injury stemming from sightseeing”.

 “The waiver was also not appropriately explained to [Jess] and therefore cannot exclude liability”.

Captains Duty of Care

The trial judge then dealt with the claim of negligence. Judge Ashford found that the captain was indeed negligent as he failed to keep a proper look out for waves being that he stopped in the ‘wave zone’. He therefore exposed the passengers to a greater risk that the boat would collide with a wave and should have acted accordingly. The trial judge held that: “The defendant should have taken precautions by removing passengers from the bow of the vessel whilst in close proximity to the wave zone and/or removing the vessel from that area”. The judge awarded Jess $171,548 for her lost income, pain and suffering and limited future earning capacity.

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The Appeal

This case was appealed by the boat owners to the Supreme Court. They claimed that the trial judge had awarded Jess too much for her limited future earning capacity. They stated that no evidence was presented to substantiate that Jess lost $100 per week in income as a result of the injuries sustained in the accident. Jess had simply supplied a rounded figure of her gross income each year following the accident, which showed her annual income falling each year. And the appeal judge agreed with the boat owners. Jess had not provided evidence to support her claims. The appeal judge said..

“The trial judge gained no assistance from a schedule of tax returns that detailed business income, expenses and net income but offered no breakdown of expenses; and where the amounts varied without apparent explanation” “Assessments for past and future loss were not substantiated by the tax returns or the evidence. They were nothing more than round figures claimed on the plaintiff’s behalf.”

Jess’ compensation was reduced by over 50% to $64,720.

MCW Legal’s Opinion

This case is very interesting as it sees two points drawn from it. Firstly, that waivers do not exclude an organisations duty of care, particularly if:

  1. It isn’t explained properly or fully; and
  2. It’s clauses aren’t clear.

This case also presents a clear lesson to claimants – evidence is critical! Jess lost half of her awarded compensation because she failed to provide proof to support her rounded figures. She therefore could not show that she lost income as a result of her injuries. By simply providing your mathematical calculations (like the ones outlined in the Future Economic Worksheet available below), Jess may have been able to keep her full compensation.

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You are wondering how the Courts calculate compensation, download this free 'Economic Loss Worksheet'. Discover the simple calculations that will estimate the value of any compensation claim in 10 minutes.

The Consequences

As you can see from this case, the court is willing to make judgement in favour of claimants who have been injured due to boat operators’ negligence, even if you have signed a waiver to say that you board the boat at your own risk. It’s also again highlights that evident is paramount. Jess’ case isn’t the first to fall down due to a lack of evidence and it certainly won’t be the last. Don’t make the same mistake Jess did.


Written by Gemma Corles[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container][fusion_builder_container hundred_percent=”no” equal_height_columns=”no” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” parallax_speed=”0.3″ video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” overlay_opacity=”0.5″ border_style=”solid”][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” border_position=”all” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” center_content=”no” last=”no” min_height=”” hover_type=”none” link=””][fusion_text]Solicitor

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How long will my claim take?

If you have landed on this post, then it’s safe to say you are trying to determine how long a claim takes to replace lost income and superannuation as a result of a set-back that was not your fault. We have just developed this new worksheet to help you estimate how long your claim will take based on your unique situation.

Download our new Claim Time Estimate Worksheet!

Dispel common myths about typical superannuation claim times with MCW Legal's 'Claim Time Estimate'. This FREE resource will allow you to estimate how long your claim will take based on your unique situation. 

 We hear this from our new clients all the time.They all have this burning question:

“Can you tell me how long my claim will take?”

The best way to answer this is through this short 5 minute story.


Let me tell you about Sara….

Sara is a doting mother to four kids all under the age of 12, 1 girl and 3 boys.
Sara works part time as a teacher’s aid at her the kids’ school in The Gap.
She lives with her husband, Joe, in the suburb of Keperra.
It was a Wednesday afternoon when Sara was taking one of her sons to their football training.
Upon dropping him off, she decided to head to the ALDI supermarket close by to collect some ingredients for the Spaghetti Bolognese she was making for dinner that night.
Sara was turning right into Settlement Road when an oncoming car ran a red light and slammed into the side of Sara’s car.
Sara was left with severe whiplash, a broken collarbone and significant bruising.
An ambulance was called and Sara was rushed to hospital.
Sara injuries following the accident were so severe she had to take 2 months off to recover and when she returned to work she struggled to stand or concentrate for long periods of time.
Sara thought to herself…

“I cannot keep working like this but if I quit there is no way we will be able to keep the house or afford to buy the kids their Christmas presents this year. This accident will have run my family into the ground.”

Eventually, Sara decided she had to reduce her hours, despite the fact she needed the money to support her family and cover the ongoing expensive medical and car bills from the accident.
She could no longer do the normal activities she did before the accident like the family’s washing or house cleaning, relying on her kids and husband to do this work for her.
Joe suggested to Sara…

“We can’t keep living like this. We can barely make ends meet now you are out of work. I spoke to a mate at work and he said we should bring a claim against the driver in the accident to cover the cost of the medical bills and replace your income”.

Sara replied…

“Joe that all sounds well and good but I have heard these claims take years and years to settle. I don’t think I have the time or energy to do that”

Sara looked into it and stumbled upon MCW Legal’s ‘How long will my claim take?’ Worksheet.

Download our new Claim Time Estimate Worksheet!

Dispel common myths about typical superannuation claim times with MCW Legal's 'Claim Time Estimate'. This FREE resource will allow you to estimate how long your claim will take based on your unique situation. 


MCW Legal is part of a national law firm that are specialists in income replacement law as well as tax, superannuation and property related issues.
We help people like Sara in understanding the typical length of time their might take by giving them our new guide on how to calculate how long their claim might be.
There are a lot of factors that contribute to the length of time a dispute takes replacing lost income including the severity of injuries and gathering expert opinions.
There are also additional areas such as tax, property and other issues that may impact on your dispute.
The first step we do is quickly determine the severity of Sara’s injuries and determine the typical time length based on that severity.
This enabled Sara to make a decision about whether compensation is an appropriate choice to replace her income and superannuation for her family.
Sara downloaded and filled out MCW Legal’s ‘How long your claim will take?’ Worksheet to calculate the typical length of her dispute for replacing her lost wages. A copy of this worksheet is available below.

Download our new Claim Time Estimate Worksheet!

Dispel common myths about typical superannuation claim times with MCW Legal's 'Claim Time Estimate'. This FREE resource will allow you to estimate how long your claim will take based on your unique situation. 


Sara found out her claim will take 24 months and realised that this was a far more managable time-frame than expected.
Had Sara not done these calculations it is highly likely she would never have decided to replace her lost income.
From sitting at work thinking…
“How am I going to afford our mortgage, let alone the kid’s presents this year.”
Sara found herself 3 months later sitting round the Christmas tree saying to Joe…

“The kids look so happy. Deciding to move forward with replacing our lost income and superannuation was a great decision.”

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Stay at home mum receives $185,000 in compensation

Facts

Anita was a stay-at-home mum caring for her young children. On a sunny weekend morning, Anita and her best friend Lynn went to the Noosa Farmers Markets’. It was one of their weekly rituals.
However, this Sunday their friendship would be tragically cut short.
On 1 December 2013, Anita Sabidussi and her friend were driving along David Low Way at Sunrise Beach.
Anita was in the front passenger seat, when a vehicle travelling the opposite direction suddenly veered right, crossing the double line and into the path of Lynn’s car. The two vehicles collided in a horrific crash.
Anita’s friend was taken by helicopter to the Royal Brisbane and Women’s Hospital with life-threatening injuries. Unfortunately she died from her injuries.
Anita was trapped in the vehicle.  The Queensland Fire and Rescue Service tried desperately to cut her free from the crumpled wreckage. She was eventually freed and taken by ambulance to the Nambour General Hospital.
As a result of the accident, Anita suffered:

  • a soft tissue injury to her back
  • an injury to her right knee; and
  • chronic depression from the memories she retained of the accident.

Anita brought a claim against the driver of the car to pay for her ongoing medical costs and to replace her lost income as she couldn’t return to work.

The Decision

The issues to be determined included Anita’s lost future earning capacity, being that she was a stay-at-home mum.
Could Anita prove she had suffered a loss of future earning capacity even though she wasn’t working at the date of the accident?

Don't read this unless...

You are wondering how the Courts calculate compensation, download this free 'Economic Loss Worksheet'. Discover the simple calculations that will estimate the value of any compensation claim in 10 minutes.

The Insurer’s Story

The solicitors for the insurer were of the opinion that it was Anita’s intention to remain at home caring for her children and not return to paid employment. They said that any impairment Anita has because of her injuries has and will not result in a financial loss.

Anita’s Story

Anita said that she planned to return to work the year following the birth of her second child. A decision that is by no means uncommon…
In 2011, the average age of the child at the mother’s return to work was 6.5 months.
This statistic supports Anita’s claim of intending to return to work as most mothers in her situation would have done so too.

Anita proved she had intended to enter into paid employment. She said that she had enrolled in a hairdressing course however, was not able to complete the course as she had trouble concentrating and was unable to complete her first practical examination.
Another indication that Anita was intending to return to paid employment is that she did actually apply for a position at Woolworths. However, fearing she wouldn’t be able to cope with the demands of the role, she never took it.

The Judgement

The Judge had difficulty accepting the insurer’s argument because Anita had shown a clear intention to return to work by undertaking education and applying for positions. The Judge accepted her evidence that she was keen to get back to work in the year following the birth of her second child. He said she had always been a hard worker.
The Judge stated..

“Anita continues to experience pain and discomfort from her injuries and has become socially withdrawn, anxious and has difficulty concentrating. Had it not been for these injuries, Anita would have returned to part time employment.”

The Judge continued…

“Anita’s loss of earning capacity cannot be precisely calculated.  Nevertheless, I am satisfied that she will suffer financial loss having regard to her age, work history and the nature of her physical and psychological limitations.”

The Judge found that Anita’s injuries would continue to cause her problems.  He awarded her a global assessment for future loss of earnings in the sum of $75,000.00.
Ms Sabidussi total award was $185,821.05.

Don't read this unless...

You are wondering how the Courts calculate compensation, download this free 'Economic Loss Worksheet'. Discover the simple calculations that will estimate the value of any compensation claim in 10 minutes.

Expert’s Opinion

The decision of the Court with respect to a global award for future economic loss and what factors need to be taken into account is of great importance.
This decision is particularly favourable to ‘stay at home’ mum’s that can prove they have clear intentions to return to paid employment.
Like Anita, it is important that you can show a consistent past employment history and prove that you were a hard worker.  If you can also prove a clear intention to return to work (i.e. by undertaking further studies, applying for jobs and/or attempting to return to the workforce) this will assist in your claim for future economic loss.
If you attempt to return to work but find you are forced to cease as a result of your accident related injuries, this looks far more favourable than you not attempting to return to work at all.
Typically in cases the award for loss of earnings for future loss would be worked out by a mathematical calculation. That is a loss per week.  Where that is not possible global awards are made.
Below are some of the factors that need to be taken into account with assessments of a global amount for future economic loss:

  • The person’s age
  • The ongoing symptoms, pain and discomfort
  • The person’s past employment history
  • Whether a person is likely to respond to treatment
  • Whether the person is disadvantaged on the open labour market

The Consequences

This decision is a positive outcome for mothers that are not working at the time of an accident.
Mother’s shouldn’t be any less advantaged when seeking damages for future economic loss, just because they have sacrificed their careers to care for their children.
Anita’s case sets a precedence that mother’s with a clear intent to return to work should not have their future earning capacity overlooked just because they are ‘unemployed’.


Written by Chandelle Whitney | Associate

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Two Sources of Video Evidence to Prove a Hit and Run Occurred

If you have been involved in a hit and run crash, evidence to prove what actually occurred, who the other parties are and who is at fault become an imperative part of a claim.
Often one of the biggest challenges we face with hit an run’s is the lack of the above evidence. People often forget key details or their are no witnesses in the first place.

The evidence no insurer can ignore...

Download this free guide on how to access the two sources of evidence - red light or fixed speed cameras and CCTV footage - that might prove your accident happened. 


When clients suffer in hit and run cases, we often hear the question:

“I know I was hit by a car. There was no witnesses and I can’t remember what happened. The police don’t believe me. How do I prove who did it?”

Sometimes, where available, the answer lies in camera footage.
And our guide on how to access this footage is best described through this short 5 minute story.


Let me tell you about James….

James is a 32 year old Site Foreman in Brisbane, Queensland. He lives with his wife, Anna and 3 year old daughter in Morningside.
He loves fishing and goes for trip at least every month.
Early one Saturday morning, James was driving to Tweed River to meet his mates for a day of fishing.
He jumped in the car just before 5am, in an effort to beat the masses to the river, and hit the road.
As James drove through an intersection another car ran a red light and clipped the back of his ute.
James went spinning and was smacked up against a light post.
James had been knocked out and when he came to he was being attended to by a dog walker who had called the ambulance.
The ambulance and police arrived on scene. A paramedic collared James’ neck and placed him carefully on the stretcher, suspecting a spinal injury.
Meanwhile a police officer was asking James if he knew what had happened. James wasn’t able to tell them much, stating…

“I didn’t see a thing. It came out of nowhere.”

James was bundled into the ambulance and on his way to hospital.
The paramedic told James…

“Mate looks like you’ll be having some time off. Hope you have good income protection.”

James replied…

“Nope – I have no income protection. And I am a contractor so no paid leave either. I am screwed. There is no way that I am going to afford the house the misses wants now either. She is going to be so mad.”

It was then that the paramedic suggested…

“You know you can make an insurance claim. It’s really easy. But it would be easier if you had proof of who hit you – like the red light camera footage on that intersection.”

Retrieving the footage from the Red Light or Fixed Speed camera is very easy. You simply need to fill out the correct form and submit it to the appropriate body. A guide on how to do this is available below.
MCW Legal is part of a nation law firm that are specialists in income replacement law as well as tax, superannuation and property related issues.
We help people like James when they involved in a hit and run with no witnesses by giving them this quick guide on applying for access to red light, fixed speed and CCTV footage.

The evidence no insurer can ignore...

Download this free guide on how to access the two sources of evidence - red light or fixed speed cameras and CCTV footage - that might prove your accident happened. 


While recovering at home from his accident, James downloaded and followed our guide on how to access the red light camera footage at the intersection where his collision occurred.
He was able to pass that information on to the police and they located the owner of the vehicle, a white Subaru Impreza.
James used the footage to prove what occurred when raising a claim to replace his lost earnings.
This evidence prove pivotal in his case.
Had James not gathered evidence to support his claim, it is likely that he would not have been successful in replacing his lost income and his family’s dream of ever owning a property would have been just that – a dream.
18 months on and James was back with his mates finishing, telling them…

“We were able to bring a claim against the driver of the car thanks to that red light camera footage. Anna and I can now afford to buy that house we were looking at in Coorparoo.”

IF YOU HAVE MORE QUESTIONS, GIVE US A CALL. 

Most queries can be answered easily in under 15 minutes.

1300 855 103

IF NOW IS NOT A GOOD TIME TO CALL...

Give us your contact details and we can ring you back to answer your questions.  It's free.

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