Category Archives for Slip and Fall Accidents

Coles to pay $300,000 to woman after supermarket slip

Introduction

In all of our articles, we are constantly reminding our readers that evidence is king in court. Such evidence can come in the form of diaries, photographs or even better, videos. CCTV footage is now a common form of evidence at trial and can allow judges to be taken right back to the scene of the accident.  

We recently wrote an article on a case where the injured party relied on CCTV footage when such a video didn’t exist. Click the link below to read the article.

But what if the video you have is tampered with or altered? Or in fact, doesn’t help your case at all? This case outlines how the Courts deal such a situation in Margaret Hill v Coles Supermarkets Australia Pty Limited [2016] NSWDC 5.

Margaret's Story. 

Let me introduce you to Margaret Hill. 

Margaret* was a 48-year-old mum of two young boys.

She was married and had worked in administration for a painting company for the last 7 years.

Margaret was an active woman juggling motherhood and working almost full-time. She loved joining her sons in activities such as cricket, tennis, trampolining and bike riding.

It was the start of the New Year and she was on holidays with her sons.

She was looking forward to enjoying the last few weeks of school holidays with her family.

cloud

Margaret's Dream

I am hoping to spend the next week or two up the coast with the boys and my husband. 

Margaret and her son decided to head to their local Coles supermarket in western Sydney early on January 11, 2013.

The next thing she remembers was “doing the splits” and landing on the floor. She was flung off her feet and her keys and wallet went flying across the floor as she hit the ground with a thud.

Margaret had slipped on a puddle of water next to a refrigerated cabinet.

A puddle that definitely shouldn't have been there. 

She suffered a serious injury to her left ankle which required surgery and was on crutches for several weeks.

As a result of the injury, Margaret now walks with a permanent limp and has lower back pain and right hip pain. 

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She was frustrated.

She could no longer look after herself or her family. She had to take a month off work and faced expensive medical bills and future surgery.

Margaret completed the bulk of household chores at home after her husband had suffered a debilitating injury at work some years previously. After her accident, many of these chores remained undone and she felt like she was “living in a pigsty”.

Her life was put on hold. Her sons lost their active and engaged mother and her injury put extra strain on their family. 

No one should be left unable to do the things they love because of someone else's negligence.

Margaret brought a claim against Coles to cover her lost income, medical bills and domestic care.

Introducing the Civil Liability Act. 

What is the Civil Liability Act?

Click to reveal it's definition

Civil Liability Act

The Civil Liability Act was introduced to protect people like Margaret for others’ negligent actions.

However, for claims to be successful under this act you need to be able to prove that the supermarket failed to keep a proper lookout for and avoid an obvious hazard.

Coles supermarket denied that the puddle existed and that Margaret contributed to her injuries.

Margaret had to develop a strong and irrefutable argument against Coles that the puddle existed and that the supermarket failed to warn people of the slipping hazard.

Margaret's success relied on 3 key pieces of evidence.

These included:

  • 1
    an incident report;
  • 2
    employee evidence; and
  • 3
    CCTV footage provided by the store showing the accident. 

The Incident Report

Margaret obtained the incident report from Coles that outlined the key contributing factor to the accident.

This was listed as was “water on floor from fruit and vegetable filing case”. The report also detailed that the cabinet should have been dry-mopped after the vegetables had been restocked.

This highlighted that the cause of Margaret's accident was indeed  a puddle on the floor. Importantly, this document is completed at the time of the accident. A document completed moments after the incident presents a stronger piece of evidence than someone's memory, which tends to fade years after an accident. 

The incident report was critical to Margaret's argument. 

Employee Evidence

After a conversation with an employee, Margaret discovered that black floor mats are normally placed in the area to reduce the risk of someone slipping.

Mrs Sandra Schembri, the first employee to attend to Margaret, and Mr Brett Mattingly, the store manager, both testified that mats were to be placed under the fridges.

Brett testified that the mats were picked up by cleaners during the evening and that staff were to replace them first thing in the morning before opening the store.  

However, they could not confirm Margaret’s claim that the mats were missing at the time of her accident.

CCTV Footage

Margaret’s lawyers requested the CCTV footage of aisle and cash register where the accident took place for the hour before and after the accident.  Coles provided just two minutes of footage from when the accident would have taken place from only the camera in the aisle.   

Crucially, 27 seconds of the film were missing for the time period which would have shown Margaret's fall. Instead, what was shown was Ms Hill lying on the floor, following her fall.

Margaret argued that someone had tampered with the footage prior to delivering it in Court.

It was also common practice for the CCTV footage to be destroyed after a certain period of time. As such, the original copy wasn’t available at the time of trial.

Thankfully, the Judge didn't need the CCTV footage to determine that Coles was at fault. 

Judge Phillip Mahony found the supermarket had a responsibility to make sure the store was safe for customers and should have made sure the rubber mat that usually covered the area where Margaret fell was returned to its position after the cleaners had finished mopping the floor.

gavel

Judge Phillip Mahony

"In this case, I am satisfied that there was a breach by [Coles] of its duty of care to [Margaret], and that "but for' such a breach, [Margaret] would not have suffered the injury she did."

Margaret was awarded $292, 335 in damages.

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Margaret's case proves that strong evidence on all fronts is important to ensure a case is successful. 

Had Margaret relied solely on the CCTV footage, she may not have won her case and received the necessary compensation to get her life back on track.

Evidence from CCTV footage is capable of being far more accurate that traditional forms. However, reliance on technology can undermine your case if the footage has been lost, tampered with or not recorded at all. Therefore, it's really important to ensure that any video recording is collected accurately from all cameras and that there is no missing footage. 

This case also highlights that it may not be necessary for someone to gather 'expert' evidence to establish there has been a clear breach of duty. Incident reports can prove to be golden ticket to proving liability or who is at fault. 

Top Tip

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, cause of the accident and who may have been rostered on to clean the area.
Taking photographs of the site of the accident and the conditions (i.e. liquid, food etc.) that caused it will also prove to be helpful.

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

Lady receives $650,000 after falling at someone’s house causing a severe arm injury

Introduction 

Slips, trips and falls are common accidents around the house. As we will uncover in this case (Chandler v Silwood [2016] QSC 90), a slip on a private property can result in a considerable payout. 

Kayleen's Story. 

Let me introduce you to Kayleen. 

Kayleen* Chandler was a young mother of two beautiful daughters. Her second child had been born just two weeks prior. 

Sadly, Kayleen and her partner had split just before the birth of their daughter. 

As a new mum looking for a much needed break and desperate to catch up on some sleep, Kayleen called Clive and asked that he look after their daughters for the night. They agreed that Kayleen would drop the girls off that night at 8:30 pm.

Kayleen fed and bathed the girls and sat down to have her own meal. She also drunk about 3 glasses of red wine mixed with lemonade.

Kayleen was looking forward to catching up on sleep. 

She arrived at Clive’s house at about 8:30 pm. With the baby and her older daughter in the car, she pulled up on Clive’s driveway, got out of the car and walked up the short flight of stairs to the front door.

It was dark by then and Clive forgot to turn the outside lights on for Kayleen.

Unbeknownst to Kayleen, Clive had also hosed the front stairs and walkway earlier that day after noticing some bat droppings in the area.

As Kayleen took a step towards the door she slipped and fell on the wet stairs.

She tried to catch her fall by putting out her hands but by doing so, her arm went straight through the glass front door.

She sliced her right arm, severing an artery.

There was blood everywhere and Kayleen was in considerable pain.

Clive rushed out to Kayleen’s assistance and called an ambulance for her. He collected the girls from the car and took them into the house.

Kayleen was going into shock when the ambulance arrived. She was taken to Redcliffe Hospital where she went in for emergency surgery to stop the bleeding.

The surgery was successful but expensive.

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Kayleen was anxious and exhausted.

She ​​​​now had to find a way to afford her enormous medical bills on top of the stress of looking after a newborn and young daughter.

Kayleen was the primary carer for both her daughters. This new injury made it difficult to look after her girls and she was already struggling to make ends meet.

Kayleen's case isn't isolated

Globally slips, trips and falls are the second leading cause of unintentional injury and death. Such accidents are also most likely to happen around the home.  

No one should be left financially worse off because of no fault of their own. 

Kayleen brought a claim against Clive’s or more appropriately his insurance company to help her pay for her medical bills.

Introducing the Civil Liability Act 2002.

What is the Civil Liability Act 2002? 

Click to reveal it's definition

Civil Liability Act 2002

The Civil Liability Act  was introduced to protect people like Kayleen for others’ negligent actions.

However, for claims to be successful under this act you need to be able to prove that owner/occupier of the home was at fault.

To do so, a lot of evidence needs to be obtained by both parties in order to establish fault.

Kayleen claimed that Clive knew the stairs were wet and that there was very little light to show the potential hazard.

To prove that Clive owed her a duty of care Kayleen gathered expert evidence from engineers and copious photographs.

Expert evidence on the state of the stairs

Mr Roger Kahler, an engineer provided a report and evidence as to the slip resistance of the stairs. 

He said the tread on the first stair sloped from rear to front. The nosing was slightly raised above the tread’s surface which caused pooling when water was poured onto the stairs.  He also observed algae growth at the stair’s edge, indicating that water did not drain freely from the stair.  He conducted a lot of testing to establish the evaporation rate of water based on the temperature on the day of the accident.

Mr Kahler believed that the tread of the stair would have been wet at the time Kayleen arrived at the house and that the risk of slipping during his testing as between moderate and high.

While there is no Australian Standards for external stair slip resistance, the testing is in breach of Australian Standards for walkways and internal stairs.

Common sense would tell us that Clive was breaking his duty of care in this case.

The lighting

Clive said he had not turned the outside light on and that the only light on in the house when Kayleen arrived was in the kitchen. 

The kitchen light did not cast any light into the entrance of the house.

There is no evidence as to how effective the street lighting was. 

The Judge accepted Kayleen’s photographic evidence that the entrance area at the front of the house was dark when she arrived.

But Kayleen ran into a snag, Clive argued that she was drunk and should have looked out for her own safety better. 

Prior to dropping the girls off, Kayleen had 3 half glasses of wine mixed with lemonade. Again, Kayleen gathered expert evidence to rebut Clive's argument.

Expert evidence on Kayleen's alcohol consumption

Dr Buchanan, a forensic medical officer gave evidence on Kayleen’s behalf that Kayleen’s blood alcohol concentration based on what she had to drink would have been between 0 and .03 percent. This would have had minimal effect on her judgment and perception. 

He further advised that if Kayleen had drunk 3 glasses each containing wine and not mixed with lemonade that her blood alcohol concentration would have been .057 which would result in some degree of disinhibition with mild impairment of perception and judgment.

Dr Robert Hoskins, a physician giving evidence on Clive’s behalf did not disagree with any of Dr Buchanan’s calculations.  However, he considered if Kayleen’s blood alcohol concentration was .057, this would affect her capacity to exercise proper care and skill.

Contributory negligence

What is contributory negligence?

Click to reveal it's definition

Contributory Negligence

There was no dispute that Clive as the owner/occupier of the property owed a duty to Kayleen as a lawful entrant to take reasonable care to prevent injury to her, while assuming she would take reasonable care for her own safety also.

Clive argued that the incident was the result of Kayleen’s inebriation and carelessness, or that those matters amounted to contributory negligence which should result in a reduction of Kayleen’s damages

But the judge agreed with Kayleen's evidence.

gavel

Judge CJ Holmes

"​A reasonable person in [Clive's] position, in my view, would have made sure the stairs were dry or at least warned [Kayleen] in their telephone conversation that they might be wet and should be taken with care, and would certainly have made sure that the light was on."  


"The failure to take those steps was a breach of this duty to her.  It unnecessarily exposed her to the risk of the fall and injury which in fact occurred. I find the case on liability made out against him."

Kayleen was awarded $650,000.

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Evidence was again crucial to Kayleen's success. 

This case shows that slip, trip and fall cases can be very difficult to prove fault on the owner/occupier of the premises whether it be a private property, shopping centre or public property. 

A lot of evidence needs to be obtained by both parties in order to establish fault. As you can see in this case, expert evidence was obtained from forensic medical officers and engineers concerning intoxication levels and the resistance of the stairs taking into account environmental factors.

Compensation can be awarded if you can prove that the owner of a property has breached their duty of care and failed to put measures in place to prevent the risk of injury.

Again, environmental factors that contribute to slips, trips and falls can include slippery surfaces following rain or spills, poorly designed or maintained walkways and stairs, poor lighting on stairs and walkways and trip hazards. 

If it all possible after an accident, it is helpful to take photographs of the site of the accident and the conditions (i.e. liquid, food, lighting etc.) that contributed to or caused the fall.

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

Man trips grabbing fish and chips and gets $360k

Introduction

From a very early age, we are all told, “watch where you are going” by family, teachers, people we know and trust. 

But mistakes happen and sometimes we simply cannot avoid hazard in our path. Take, for example, hazards at night. We have pretty poor night vision and rely heavily on artificial light to illuminate our homes, streets and paths so we can see where we are going. But that too has it's limits. 

So, whose fault is it when you can’t see where you are going in the dark, trip over something and injure yourself?

This was explored in a recent case (Greater Shepparton City Council v Clarke), where a man fell over and suffered significant injury after running into a storm water drain in a poorly lit reserve park. 

Steven's Story

Let me introduce you to Steven Clarke. 

Steven* was a 53 year old, divorced father of four.

He loved his kids and worked hard to give them a bright future, taking on many jobs to make that a reality. He worked as truck driver, panel beater, spray painter and once as a drag racer.

He lived in the picturesque, regional town of Shepparton, Victoria. 

Steven was looking forward to his retirement. 

cloud

Steven's Dream

I can't wait to have some more free time to do the things I love such as working on cars and heading to the pub with my mates. 
I have worked hard all my life and now I can give myself the opportunity to relax. 

All was on track on until...

Steven tripped over while walking to get fish and chips.

It was about 8pm on 14 September 2008 and Steven decided he wanted fish & chips for dinner. Instead of driving to the shop as he usually did, he decided that he would walk down and back this time. 

Steven set out on the short walk to the shop and decided to cut through the park on his way.

He hadn't walked through the park before. But, just like most people, Steven didn't even think about the possibility of a hazard ahead. Despite it being not very well lit, the park was quite flat, regularly mowed and there were many people around. 

As he was crossing the road, a car came along towards him, so he picked up his pace into a jog to cross the road safely.  

All of a sudden he was heading face first into the ground. 

His feet had gotten caught on something. It all happened so quickly he didn't have time to catch his fall. 

Steven had tripped on a stormwater drain that sat about 12- 13 cm above the ground. It was poorly lit area and Steven just didn't see it. 

As a result of his fall, Steven sustained:

  • a fractured left hip;
  • minus
    d​​​​islocated left hip;
  • minus
    ruptured ligaments in his left knee; and
  • minus
    aggravated injury in his lower back.

Steven was angry. His accident had left him with a permanent disability. 

He now requires a walking stick and wears a back brace and knee brace, lives in constant pain for which he takes a variety of powerful painkillers, and faces a full hip ­replacement and possible knee reconstruction.

Steven required and continues to require considerable help from others. He maintains a good relationship with his ex-wife who prepares all his meals, cleans up after him and does his washing. On ‘bad days’ she even assists him with showering and toileting.  

His medical expenses were skyrocketing and knee and hip surgery aren't cheap. Steven's relaxing retirement was out the window. He would need to continue to work to afford his growing medical expenses. 

No one should be left worse off because a local council careless created a hazard the local council has carelessly left.

Steven brought a claim for damages against the Greater Shepparton City Council who was responsible for the care and maintenance of the pit and park.

Steven case isn't rare. Accidental falls account for most hospitalisations that transport accidents.  

The graphic below is from the Federal’s Government agency, the Australian Institute of Health & Welfare, and show that falls accounted for nearly double the number of hospitalisations than traffic accidents.

More interesting is that other statistics show that the average number of days in hospital for an injury from an accidental fall was almost 4 times as long as one for an injury from a traffic accident. The cost of that additional hospital stays alone would be astronomical.

Introducing the Civil Liability Act. 

What is the Civil Liability Act 2002

Click to reveal it's definition

Civil Liability Act 2002

Claims against councils are notoriously difficult to run. 

This is because section 45 of the Act provides greater protection for councils in their capacity as "road authorities" against claims for negligence in specific circumstance. That is, the council has to have had actual knowledge that the hazard existed for a claim to be successful.

Proving that the council knew about the hazard is often easier said than done. 

For Steven to win his trial, he had to prove that the Council knew or should have known about the hazard. 

And that they failed to do anything to remove or reduce the risk of storm water drain. 

Steven had to prove three things:

  1. Did the council owe him a duty of care?
  2. Did they know that the drain was a hazard?
  3. Did they do anything to avoid someone sustaining an injury from the drain?

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1. Did the council owe him duty of care?

First, Steven had to determine whether the council owed him a duty of care. Simply put, this is the responsibility of the council to ensure that Steven is safe when walking on their footpaths or driving on their roads. 

The Council was responsible for maintenance of the park and road that Steven was walking on. As a result, the judge believed that they owed Steven a duty of care. 

gavel

Justice Keogh

"As the authority with those responsibilities, the [council] owed a duty to take reasonable care to keep pedestrian safe using the reserve, including [Steven].

2. Did they know about the hazardous drain? 

Now that Steven had established that the Council owed him a duty of care, he had to determine that the council knew or should have known about the hazard that the drain presented. 

Typically, a claimant like Steven would look into whether the council has received any previous complaints. This would clearly tell the courts that the council knew about the hazard.  

But unfortunately for Steven, there were no complaints from the public about accidents involving the drain. So, how did he prove the Council knew about the drain? 

He got evidence from the council workers that common sense would have told the council a hazard existed. 

Mr Harford, the parks and gardens coordinator for the park, said that council officers would work at the reserve 6 - 8 times a year.  He stated that he had walked over the reserve a number of times, and did know that the stormwater drain was raised about 12 or 13 cm above ground level. 

Mr Harford agreed that the reserve had no lighting, and pedestrians at night would have very little opportunity to see the stormwater pit. 

He confirmed that the drain would constitute a tripping hazard at night. 

The Judge believed that regardless of the fact their had been no known complaints on the drain, the Council knew the drain was a risk. 

gavel

Justice Keogh

"I have no hesitation in concluding that the defendant had actual knowledge of the particular risk which the stormwater pit posed to pedestrians crossing the reserve at night"

3. Did they do anything to reduce the hazard?

Part of Steven's argument then relied on him determining that the council failed to remove or reduce the risk of the drain. 

The court believed that the council could have very easily and cheaply reduced the risk by increasing the dirt around the drain so it is flush with the ground, painted the drain another bright colour or placed warning signs around it. 

Instead the Council did nothing. 

Steven was successful. 

He was able to prove that the Council knew about the hazard and didn't do anything about it. This is particularly impressive as most complaints against councils are difficult to prove. 

gavel

Justice Keogh

“I conclude that the [Council] was in breach of its common law and statutory duties as road authority and infrastructure manager by failing to take precautions in response to the hazard caused by the raised stormwater pit. Had any precautions been taken, [Steven's] fall and his injuries would have been avoided.”

Steven was awarded $359,303 in damages for pain and suffering, past and future medical expenses and past and future gratuitous care. 

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While his retirement will not be the same as he had dreamed, at least he wouldn't have to worry about how he was going to pay his bills.

Top Tip

Claims against council are difficult to run but this case proves they are not impossible.
It is important to establish that the council knew or should have known about the hazard.
This can be done by looking into complaints made by other members of the public or getting evidence from council workers themselves about how they conduct their site inspections. 


Written by Chris McMahon | Special Counsel

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

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 

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

Inexperienced tenpin bowler sues Alley for $156,000

The Facts

The lights dimmed, the games began, and Susan stepped up to take her turn. Susan was out with her work colleagues one evening for a session of ‘glow in the dark bowling’.

Like most of us, Susan had no real bowling skills.

In an effort to improve, she aligned her bowling stance to match an impressive looking bowler 2 lanes down. As she stepped forward to release the ball, Susan crossed the foul line and suddenly slipped and fell onto her left hip, causing a serious fracture and extreme pain.

Nearly two years later she was still in pain and unable to work or go about her day the way she had before the accident.

Susan brought a claim for compensation against the bowling alley, alleging the bowling alley’s lack of lighting and line marking caused her injuries. The bowling alley argued the contrary and claimed Susan failed to inspect the line marking.

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Not watching the video may be the most expensive mistake of your life. 

The conflict was decided at trial…

The Judgement

Was the bowling alley negligent?

In short, yes. It’s not unreasonable to expect that the bowling alley should have foreseen the high risk of injury involved.

Remember, a bowler is moving quickly, with a very heavy bowling ball in hand and in this case, under dim lighting.

It is little wonder these accidents occur so frequently. In fact, in the United States, bowling accidents over 17, 000 accidents were treated in hospital in 2015 alone. And bowling accidents were more common than Boxing and Rugby, seen as typically ‘more dangerous’ sports (see Graph below).

The judge confirmed this, stating that:

gavel

"The bowling alley owed Susan a duty of care, and breached that duty by not properly marking the line (nor warning [Susan] of that failure) "

Did Susan contribute to her injury?

The judge acknowledged that the act of bowling the ball (much like driving a car) is an intuitive action, but “requires the mind to process many things” including personal safety.

Susan attempted to look after her safety by aligning herself with another bowler, however, this was not enough. Susan could have perhaps looked harder for the line markings or paid more attention to where she stepped.

This one missed action resulted in the judge believing that she contributed to her own injuries by 40%.

What compensation was awarded?

Susan received around $156,000 (only 60% of the total amount) for pain and suffering, economic loss and future medical costs. 

MCW Legal's Opinion

At first glance, it seems harsh to attribute 40% liability to the Susan. She wasn’t intoxicated, she wasn’t deliberately breaking rules, and she did attempt to position herself properly.

However, the Susan did not properly look out for her safety. Or more accurately, did not provide enough evidence to support her statements that she took all the steps to avoid the accident. A person wouldn’t cross a road without looking in both directions or jump into a pool without looking where the ledge ends. In the same way, a person in Susan’s position likely wouldn’t bowl without gauging their distance from the foul line.

The Consequences

Subconsciously keeping a look out for safety isn’t enough to avoid injury – a claimant must prove they took all reasonable steps to mitigate the risk.

Gathering evidence and proving this point is difficult but crucial.

If a claimant cannot prove they took reasonable measures to look out for themselves, they might be found to have contributed to their injuries (which can have a devastating effect on compensation).

It is not always clear who is at fault for an accident in a public place, so it is important to be aware of one’s surroundings at all times. And maybe steer clear of glow-in-the-dark bowling alleys!


Written by Verity Smith | Law Graduate

Child Rendered Tetraplegic After Diving into Hotel Swimming Pool – Hotel Found Liable

by Emily Billiau

Following a 3 day trial in the Supreme Court of Queensland, Gympie Motel has been found liable in negligence for catastrophic injuries sustained by a 12-year-old plaintiff when she dived into the swimming pool at the hotel in 1998.

In the decision of Lennon v Gympie Motel [2016] QSC 315 liability was apportioned 85% to the Hotel and 15% to the child Plaintiff, who was found to have failed to take care for her own safety. The result being, she will recover 85% of her damages, the quantum of which is yet to be determined.

Why is the Hotel Responsible?

Relevantly:

  • the depth of the pool was just 90cm at one end gradually increasing to 174cm at the other;
  • the pool did not have any depth indicators;
  • there was no sign to warn swimmers against diving into the pool;
  • there was a sign instructing children to be supervised by an adult at all times while using the pool;
  • the plaintiff and her younger sister were unsupervised at the time of the accident.

Ultimately, the court had regard to the evidence of orthopaedic surgeon, Dr Tuffley, as to the most likely mechanism of injury and found the most likely mechanism to be a dive into the pool which resulted in the Plaintiff’s head striking the bottom of the pool. Bearing in mind, the Plaintiff’s height was almost equal to the depth of the pool at the deep end and the evidence of the witness about the nature of the games engaged in by the children leading up to the incident, the court did not find that the Plaintiff’s dive was a particularly dangerous one.

The Court found that the Hotel was negligent for not erecting a sign which prohibited diving into the pool or otherwise warning swimmers of the shallow depth of the pool and for not installing depth markers in the pool. The Court found that the risk of diving into the pool was not a risk that was sufficiently obvious to alleviate the need for the Defendant to take these precautions. This was particularly so given the class of swimmers who tended to use the swimming pool often included children. Had such a sign been erected or depths markers been in place, the Court was satisfied the Plaintiff would not have dived into the pool and struck her head.

Why did the Court Find the Plaintiff had contributed to the Accident?

In making a finding of contributory negligence against the Plaintiff, her young age was considered, however, the Court held that being an experienced swimmer and a responsible girl for her age, she knew of the dangers of diving and therefore failed to take care for her own safety by diving into the pool. Her culpability was assessed at only 15%, although the Court made comment that a higher percentage in the order of 25 – 30% would have been appropriate had she been a mature adult.

You can read the full decision here.

Slip and fall incidents

By Tine Ibraheem


Unfortunately, every year many thousands of people are injured after slipping and falling in public places (such as supermarkets) or whilst visiting private premises (whether the fall is caused by a slippery substance on the floor, food produce or any other hazardous item or surface).  Slip and fall accidents are often embarrassing and stressful. It is important to stay calm and immediately seek the necessary medical attention – this could have happened to anyone.

Often, slip and fall accidents result in serious injuries. Unfortunately, many people do not know their rights in such circumstances. It is important to know that all shops, workplaces, restaurants and other public and private venues have a duty to ensure that their premises are safe for their entrants.

If you or a loved one have been involved in a slip and fall accident and have suffered an injury, it is important that you contact a personal injury lawyer. Your entitlement to compensation and to what extent in such cases is often complex and dependent upon a range of factors including, where the slip and fall occurred, why the slip and fall occurred, whether negligence on behalf of the property owner can be established, the injury that occurred and whether there is any fault on behalf of the injured person.

If you have a viable case, you may be able to claim compensation for things such as your pain and suffering, out of pocket expenses, actual loss of income and potential future loss of income.

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