Full steam ahead for river cruise disappointment damages

The New South Wales Court of Appeal yesterday delivered the final test case ruling relating to the 2014 Rhine River cruise disruption and disappointment damages class action case: Scenic Tours Pty Ltd v Moore [2023] NSWCA 74 (20 April 2023) (Ward P, Kirk JA and Griffiths AJA). This was the fifth major decision in this […]

source https://cartercapner.com.au/blog/full-steam-ahead-for-river-cruise-disappointment-damages/

Virus outbreak stokes cruise disappointment & class action stumble

Damages for disappointment can be recovered when a consumer acquires services that are intended to provide pleasure, relaxation or enjoyment but don’t live up to their promise. Substandard travel and holiday services – and particularly cruise disappointment – are especially susceptible to such claims. The consequential losses of a travel service provider’s failure to deliver […]

source https://cartercapner.com.au/blog/virus-outbreak-stokes-cruise-disappointment/

Brain injured motor mechanic awarded $1 mil for farm bike accident

A 60-yr-old motor mechanic who was thrown over the handlebars of a motorcycle he had just serviced and was test riding on a dirt road, has been awarded more than $1 million for a serious brain injury that resulted from the farm bike accident. Adrian Antaw conducted the repairs for friend Edward Valks who occupied […]

source https://cartercapner.com.au/blog/brain-injured-motor-mechanic-awarded-1-mil-for-farm-bike-accident/

Venue liability for influencer bar assault stayed pending appeal

A patron’s injury compensation win against a glamour beachside restaurant venue and its security guard provider for not intervening to prevent a bar assault by an unruly guest has been stayed pending an appeal.

Instagram and OnlyFans influencer Clinton Chadwick arrived with two friends at the Bucket List Bondi Beach Club around 6pm on the last Friday before Christmas in 2017.

On entry to the ritzy premises a very inebriated and behaving badly Stephen Martin verbally antagonised the trio with comments about Chadwick’s appearance and the tattoos his group had on display.

Chadwick gave Martin a push. A little later he attempted to punch him only to provoke a response in which Martin struck him with a bar stool unconscious to the ground and laid further blows on his head while he was still down for the count.

The influencer sought compensation injury for his injuries and to his “brand” from the establishment and the security organisation alleging they should have taken precautions to ensure that Martin and his rowdy friends were controlled or evicted from the premises before the assault took place.

They denied liability on the basis that such violence was not foreseeable in their genteel family-oriented restaurant.

Justice Michael Elkaim agreed that the premises held a restaurant licence but observed from CCTV footage that food was only occasionally being served and there was “scant evidence of eating”.

The risks of violence associated with alcohol use were – the judge observed – well-known and licensees’ duties include the minimisation of harm associated with misuse and abuse of liquor.

The higher level of duty owed to patrons arose out of the permission they held to sell liquor upon their premises.

Violent outbursts were clearly foreseeable said the Zambian born judge, given “it was full of young people drinking alcohol [and] was far from a placid restaurant environment”.

It followed that the “not insignificant” risk of harm was had to be mitigated by monitoring alcohol consumption and maintaining “the peacefulness of the premises”.

Mere engagement of security guards was of itself an acknowledgement by the venue of that risk and the need to take precautions.

Martin – who was not sued – swore that before arriving at the Beach Club he and his friends had in fact been evicted from the German pub across the road.

“On a scale of one to ten with one being sober and ten being as drunk as I ever have been in my life,” Martin – who was called by Chadwick to give evidence in his support – explained from the witness box. “At the time of the incident I was very drunk, maybe an eight or nine, too drunk to be there really”.

Not to be outdone, the defendants contended that no matter how intoxicated Mr Martin and his group might have been, they were never on notice that he displayed any propensity towards violence.

It emerged though, that a manager had asked security to “keep an eye on those guys as they had already said a few things to other people” and their boisterousness had been noticed by others in authority.

In the court’s view those factors were sufficient evidence of behaviour that should have led the defendants’ staff to take action.

The judge had no doubt that their behaviour was “precisely the type” of disruptive and aggressive conduct that should have prompted their control, restraint or eviction.

Jason Fullerton – an expert in crowd control at licensed premises – gave testimony that the level of security staffing was inadequate in that there were too few and those that were there were not properly qualified.

At the time of the incident, there was no licensed security guard in a position to intervene.

The court concluded that the venue and the security company should be equally liable for Chadwick’s injuries: “the second defendant provided inadequately qualified staff; the first defendant permitted the centre to function with inadequate security”.

Justice Elkaim also rejected the contention that because Chadwick had made the first physical contact, he was the instigator of the incident.

Both defendants asserted that the influencer had quickly returned to full economic capacity and that he was consciously exaggerating the psychological impairment he claimed.

Their neuropsychology expert Professor Richard Mattick – who administered the controversial MMPI and another so-called malingering test and whose views were preferred by the court over those of his colleague Donald Rowe – concluded he sustained no traumatic brain injury.

Orthopaedists Matthew Giblin and Professor Michael Shatwell agreed that Chadwick’s physical injuries had been transient.

Chadwick’s claim was thus primarily confined by the court to the psychological impact on his self-confidence which he contended was critical to his income earning capacity as an Instagram influencer.

“I was in the prime of my life, physically and mentally,” he swore from the witness box. “I had the energy of an Energizer Bunny and worked long hours each week to build up my business, attended the gym, and had many friends that I socialised with when I had time to do so”.

The business he referred to was Rig Fit – an activewear supply business – in which he engaged influencers (including himself) to market its products.

His Honour noted he was “certainly a very competent influencer not only influencing the sale of his activewear products, but also to influencing various persons to invest”.

The defendants argued Chadwick’s  claim for loss of earning capacity was fanciful in that his business “was probably not viable”; leading up to the assault he was consuming up to 20 ‘lines’ of cocaine a week; he was dealing drugs; and he had police issues waiting to be addressed.

They produced evidence that he had earned around USD $70,000 over a two-year period since the assault by posting images of himself on OnlyFans.

The court accepted his involvement in social media was only marginally diminished by the assault and that he had participated in a bodybuilding contest. He was also making plans to visit Mykonos in the near future.

Justice Ekaim did not consider Chadwick to be overtly dishonest but thought him to be “somewhat deluded by his own image, his capacity to be a successful businessman and his perception of what his future might have been but for the injury”.

He agreed he suffered a very traumatic experience resulting in a post-traumatic stress disorder that is gradually resolving, a minor neck injury and some permanent scarring.

In addition though there had been a psychological impact on his confidence and self-esteem that affected his perception of his image that in turn damaged his “brand”.

The judge assessed his non-economic loss at 25% of a most extreme case, equating to $46,000 for general damages. He allowed a past loss of income at half average weekly net earnings of $567.50 for of 272 weeks making a total of $154,000. A “very small buffer” of $25,000 was allowed for loss of future earning capacity to make up a total assessment of $251,000.

This though was reduced for the extent to which Chadwick was himself responsible for being caught up in the event – i.e. contributory negligence – by 20% to result in a net award of just over $200,000.

On 20 March, the order for payment of damages was stayed pending an appeal that the defendants have indicated they intend to file promptly.

Chadwick v Bondi Beach Food Pty Ltd; Bondi Beach Food Pty Ltd v Crossguard Group Pty Ltd [2023] NSWSC 197 Elkaim AJ, 9 March 2023 Read case

source https://cartercapner.com.au/blog/venue-liability-for-influencer-bar-assault-stayed-pending-appeal/

Intoxicated reveller: does criminal conduct bar damages?

An intoxicated reveller who threw herself onto the bonnet of a car has defeated a third-party insurers’ arguments that such criminal conduct bars her from compensation for injuries received when she was thrown off as the vehicle accelerated away.

Taylor Draper was among many under 25s congregating in Jack Evans Park, Coolangatta around 1am on Easter Saturday morning in April 2017.

Her group had walked there after drinking sessions at the Coolangatta and the Sands Hotels where some scuffles had broken out.

Further aggressive outbursts at the park prompted 16-yr-old Rebecca Ribbons – among a different group of youths accused by others of stealing a handbag – to call a friend to collect them ASAP.

When Brooke Catlin arrived in her mother’s Holden Astra about 10 minutes later, Rebecca and two others raced to the car to get in.

Brooke began to drive slowly away but suddenly stopped as Taylor “bolted at full speed” from the park and then jumped headfirst onto the Astra’s bonnet, cracking its windscreen.

She turned herself around and sat in the centre of the bonnet of the stationery car with her back against the windscreen and her legs out in front.

As others advanced from the park towards her, Brooke accelerated westwards along (the NSW side of) Boundary Street.

She slowed to turn right (into Queensland) at a roundabout to ascend Hill Street which – she said – she believed was far enough away from her antagonists to stop and get the girl off the car before driving home.

As the car slowed, Taylor attempted to dismount by straightening her legs out over the driver’s side towards the bitumen.

She slid as the car began its turn and fell backwards landing on her lower back and striking the back of her head heavily on the roadway.

There were three disinterested eye-witnesses to the event. One of those – a window repairer on the eighth-floor balcony of the Hotel Komune – captured mobile phone vision of the Astra’s approach to the intersection and turn into Hill Street.

“The other people in my vehicle were screaming in fear for me to ‘Go, go, go,” Brooke explained when Taylor’s liability-only injury compensation claim came before the NSW District Court. “I tried to drive away from what I thought was real danger, but I was conscious that this girl was hanging on, on the front of the bonnet”.

Acting Judge Jason Curtis rejected Brooke’s “agony of the moment” defence concluding that at 50 m distant from the aggressive park dwellers – and still 20 m short of the intersection – she was in a sufficiently “un-threatening situation with ample opportunity to stop the car momentarily” to allow Taylor to alight.

He was fortified in this conclusion by the transcript of her 000 call being “inconsistent with escaping a situation of grave danger.”

Buy did Taylor’s unlawful conduct stand in the way of compensation recovery?

Reckless damage to property and assault constituted offences – noted the judge – but sitting on the bonnet of a stationary car was not illegal and indeed was not unreasonable given the occupants suspected of having stolen a handbag.

There was thus no reason at common law why she should be prevented from recovering compensation.

Neither could there be any Civil Liability Act protection against liability for the injured party’s criminal conduct given the unique NSW antidote to immunity that applies when the defendant’s conduct also constitutes an offence.

By “driving between 11pm and 5am with more than one passenger younger than 25 years of age,” Brooke had been in breach of the terms of her provisional drivers’ licence.

Brooke’s third-party insurer appealed against these findings.

In delivering the lead judgment of the court, Justice Christine Adamson upheld all of the conclusions of the lower court.

She agreed that the occupants of the Astra had over-stated the danger to which they remained exposed after moving off with Taylor still sitting on the car’s bonnet.

Taylor was after all young female who was unrestrained on the bonnet and without any kind of weapon, much less one that could cause any harm to the occupants of the vehicle. Rather, she was put “in grave danger of harm from the time when the vehicle started to move forward” and faced “the near certainty” of serious injury or death when thrown off.

The insurer also argued that the extent of Taylor’s contributory negligence should be upgraded from 25% to 80% inter alia because the Astra “was obviously about to drive off” at the time the young woman had jumped on to the bonnet.

The appeal judges concluded that the primary judge had properly rejected that submission that and left the contributory negligence finding undisturbed at 25%.

A further trial in relation to damages will be required unless the parties can agree on a sum that appropriately represents the value of Taylor’s injuries and losses.

Catlin v Draper [2023] NSWCA 49 Meagher JA Mitchelmore JA  Adamson JA, 24 March 2023 Read case

source https://cartercapner.com.au/blog/intoxicated-reveller-does-criminal-conduct-bar-damages/

Pedestrian hit on sidewalk, injury exaggeration sinks claim

A pedestrian hit by car on a Broadbeach sidewalk after a violent two car collision and then had a wall that the car also hit fall on top of her, has been ordered to pay a substantial part of the legal costs of the at-fault driver’s insurer for having exaggerated her injuries and the severity of her symptoms.

Meah Baldock-Davis was walking towards Pacific Fair when the innocent vehicle in a two-car collision flew from the road beside her and struck her from behind.

She fell to the ground only to have a wall bordering the pavement that the car had also struck, fall on top of her.

After being ambulanced to the Gold Coast University Hospital for surgery to her left foot and neurological assessment of her back, she was discharged four days later.

The neurology department discharged her from outpatient treatment three weeks after the accident with an assessment that she was symptom-free.

Fast forward from July 2019 to December 2022 when her injury compensation claim against the at fault driver for spinal injuries, fractured ribs and the foot injury came before Justice Sean Cooper in the Supreme Court in Brisbane.

His Honour accepted the L3 and L4 fractures recorded by the hospital – in the absence of evidence of any other trauma to her spine which might otherwise explain their existence – were caused by the accident.

There remained some disagreement between orthopaedist John Radovanovic called for the plaintiff and his colleague David Pincus as to the extent of other injuries at the C7/T1 level.

The judge found though that contest was unnecessary to decide given other findings that any case the plaintiff could make regarding a serious ongoing impairment, was doomed to fail.

Her symptom-free discharge from a neurology department and a similar clean bill of health from her physiotherapist after dozens of treatments up to December 2019 were completely at odds with the exaggerated accounts of ongoing pain and restricted activity she had given to Radovanovic, neurologist Scott Campbell and Occupational Therapist Cho-Lee Ng.

Payroll evidence showed that she had increased her work hours the accident whereas her accounts to the experts were that she had reduced her work hours post-accident.

All three experts – when confronted such records and social media vision – agreed they revealed an entirely different situation to what the claimant had described to them.

The video footage showed her running, kicking and heading the ball while playing in 18 Division I soccer games during 2021 and wrestling with her brother in a jumping castle

before sliding down a slide on her back and then landing heavily.

The CTP insurer tendered a video compilation of those and other activities taken from the plaintiffs Instagram account.

Baldock-Davis answered these criticisms by saying that she engaged in such activities for the social value and paid the price of severe pain after each event.

The court was not impressed.

“I have significant reservations about the reliability of Ms Baldock-Davis’ evidence as to the nature and severity of her symptoms and their impact on her capacity to undertake activities of daily living,” Justice Cooper observed.

“I have formed the view that she has, whether consciously or not, overstated those effects. I do not accept that Ms Baldock-Davis’ accident injuries restricted her in the manner and to the extent she stated in her evidence”.

He assessed damages at $21,510.00 and nothing for future loss of earning capacity. The total award at just $40,635.44 was lower the amount that had been offered by the resulting in an order that she must pay its costs on the standard basis for the proceedings from March 2021.

 Baldock–Davis v Popham & Anor [2023] QSC 24 Cooper J, 23 February 2023

source https://cartercapner.com.au/blog/pedestrian-hit-on-sidewalk-injury-exaggeration-sinks-claim/

Safety measures messages mixed: thumb injury costs firm $727k

The idiosyncrasies of the concrete industry have been laid bare in the case of a truck driver who sustained an on-the-job thumb injury when manipulating defective equipment in the course of delivering wet product to a construction site.

Karen Reddock – a New Zealander experienced in machinery operation and driving concrete delivery trucks – was inducted by both ST & T and Boral in May 2018 to drive the former’s cement trucks for delivery of Boral’s cement.

The contractual arrangement between those two companies allowed Boral’s batching plant manager to give directions to ST & T’s employees for delivery jobs and to stand them down if it considered any truck to be unsafe.

ST & T was responsible for all truck maintenance except in respect of agitators on those in its fleet that had been supplied and installed by Boral.

Reddock’s first 4 m load on the day of her injury in July 2018 was collected from Boral’s Browns Plains plant at about 6:15 am.

On arrival at the Mansfield job she noticed the delivery chute at the rear of her truck was stiff and hard to rotate into place to aim the pour into variously positioned wheelbarrows.

She reported the defect on her return to Boral’s batching plant manager Simon Dignan who – believing he knew what the problem to be – came down from his office to retrieve a grease gun and apply lubricant through the grease nipples on the sleeve that housed the arm to which the delivery chute was attached.

The extent to which this relieved the problem became a matter of controversy.

Dignan pushed the chute back into its transit position and told Reddock he needed her to do another job because they had no other trucks available.

She departed shortly after with a 6 m load for a Brisbane City Council job in Juliette Street, Annerley.

At that jobsite, BCC workers opened the chute for the pour with Reddock hydraulically controlling the height of the discharge point of the chute by a lever in the cab of the truck.

At the end of the pour, she attempted to rotate the chute back into its transit position. After several unsuccessful pushes against the jammed device she felt a slight tweak or twinge in her hand but thought nothing of it.

The chute was eventually returned into place by a site worker, allowing Reddock to leave the job just after 10 am.

The pain in her hand became more noticeable in the course of her third job of the day, a delivery to a site in Chapel Hill where she relied on workers at the site to manipulate the stiffened delivery slide.

It was on return from there that she sought out Dignan to prepare an incident report in relation to the Juliette Street job only to be told she was needed to drop another load.

Not sure whether she should follow that direction, Reddock called her boss Wade Schrodter to report the truck problem and that she had “bugged her hand”.

Schrodter insisted the truck be returned their Wakerley yard for repair. He called Dignan to explain and drove to the plant to collect Reddock for medical treatment.

The cause of the chute’s stiffness was identified the following day at ST & T’s workshop as the delamination of the linings on both semicircular brake shoes that surrounded its swivel arm. Those linings were known to have a limited service life but were only replaced upon failure because they could not be inspected without the brake being fully dismantled.

The worker’s injury compensation claim – against both ST &T and Boral – came before Justice David Jackson in the Supreme Court at Brisbane.
Reddock contended that ST & T’s safety instruction ought to have been that she should stop work immediately in the event of encountering any unsafe situation.

To escape liability, the company relied on an induction document that clearly spelt out machinery deficiencies had to be immediately reported to it and that “if you feel something is unsafe DO NOT PROCEED”.

While the court accepted Schrodter had explained such things to Reddock, it preferred the worker’s evidence that no such induction document was provided to her.

ST & T’s failure to give a “stop work” instruction did not though – in the judge’s view – constitute a breach of duty as such a stringent requirement was impractical.

Where the truck company came unstuck was the “mixed message” created by a further induction warning – also included on the induction document – that “getting along” with the batching plant manager “makes your working environment much more enjoyable”.

The worker could therefore not have been faulted – Justice Jackson concluded – for following Dignan’s direction to do the Juliette Street job notwithstanding the cement delivery chute on her truck was defective.

His Honour ruled that ST & T was negligent for its “failure to give a clear instruction that the plaintiff was to contact it before proceeding further” in the case of safety-suspect equipment.

Boral was likewise at fault for Dignan having sent the worker on another job without having effectively remedied the defective chute mechanism.

Liability for her hand injury and subsequent psychological decompensation was apportioned equally between the two companies.

When it came to damages Justice Jackson noted that while those payable by the employer were limited by the WCRA to what is allowed under the Civil Liability Act including the ISV scale, those payable by Boral were to be assessed under the common law.

The only material difference that arose was care damages being included in the common law assessment but excluded from the WCRA formulation.

General damages calculated by reference to ISV requirements came in – after reducing an ISV of 30 to 22 due to the chance of the worker independently having developed de Quervain’s tenosynovitis and/or a mental disorder – to yield $43,250.

At common law general damages were assessed at $65,000 – the sum submitted by Boral to be appropriate – but discounted for the same factors by 30% to come in at $45,500.

Justice Jackson gave no reasons for settling on $65,000. He paid no attention to any of the four decided cases to which he was referred. The case on which Boral relied was a 2013 where the plaintiff argued the trial judge’s assessment was manifestly inadequate but where the appeal judges found – by looking back a further 10 years – the amount allowed was at the lower end of the range but not erroneous.

It is notorious that the ISV scale artificially deflates general damages awards. How then can it be that general damages assessed at common law is for almost identical with amount assessed under the scale?

Given the dearth of recent common law assessments in this state, one wonders whether awards in other Australian jurisdictions should be considered by the court for comparison.

Reddock’s damages were awarded at $633k as against ST & T and $727k against Boral.

Reddock v ST&T Pty Ltd & Anor (No 2) [2023] QSC 21 Jackson J, 13 January 2023

source https://cartercapner.com.au/blog/safety-measures-messages-mixed-workers-thumb-injury-costs-727k/