Imprecise expert evidence defeats cyclist road debris injury claim

Debris or a hazard left on or falling onto a road – from what is presumed to have been another road vehicle – frequently cause cyclist accidents and injuries to motorcycle riders and their pillion passengers.

Proof that the road debris injury was caused by an object that fell from another vehicle – albeit one that cannot possibly be identified – opens up the chance of compensation from the Nominal Defendant scheme.

A recent Victorian decision concerning a bicycle rider illustrates the hazards that forensic challenge can face.

Philip Bramich was cycling in a group of eight when his bicycle hit an object – that was later identified as a D-shackle – that became lodged between the wheel and his bike frame.

En route to Broadford some 90 km due North of Melbourne – in ‘perfect’ conditions – they were overtaken by many trucks and many boats being towed in the direction of Lake Eppalock slightly to the West of their route.

As a result of his wheel collecting the object, Bramich was suddenly and violently propelled over his handlebars – ‘as if he had hit a brick wall’ – sustaining serious injuries including a cervical spine fracture.

Debris from vehicles, including bottles and shackles, are – so swore the riders in the group – regularly observed on the roadways they take for weekend outings.

Bramich retained safety engineer Nigel McDonald to provide expert advice as to the origin of the shackle that had caused the December 2019 accident.

The engineer explained that a D-shackle is a load bearing metal link closed with a fastening pin or bolt that is used on heavy vehicles to attach trailer safety chains, to secure loads or to connect components in 4WD recovery system.

The shackle had – in McDonald’s view – fallen from a moving vehicle because it had been “poorly placed” or had “rattled loose” and ultimately come apart.

His claim was rejected by the default CTP insurer on the basis there was insufficient proof the offending object had fallen from a road vehicle.

On the strength of McDonald’s opinion, Bramich filed for a review of that decision in the Victorian Civil and Administrative Tribunal contending that the D-shackle most likely had been dislodged from a vehicle through movement while being driven, causing it to fall onto the roadway.

The Tribunal had to decide what inferences it could or should draw from the sparse but uncontested facts.

It concluded that the D-shackle had come from a vehicle but was not satisfied that the accident was caused by the ‘driving of a motor vehicle’.

Notwithstanding McDonald’s report was the only expert opinion in evidence, VCAT thought it insufficient to allow a conclusion that the shackle’s fall was due to the “driving” of any vehicle from which it had fallen as opposed to – because the engineer had implied both causes were equally likely – it having been “poorly placed” in a way that was unconnected to such activity .

The seriously injured Bramich then appealed to the Supreme Court where Justice Jacinta Forbes was – regrettably for him – of the same view.

“In circumstances where there is no direct evidence of how the D-shackle came to be on the road, and in light of the very limited facts available, it is difficult to say that either possibility is the more probable inference,” she ruled.

In Queensland and NSW the unfortunate cyclist would have to had supportive expert engineering opinion – in addition to that establishing the object had been dislodged as a result of “the driving of the motor vehicle” – that the component was of a type that would require regular inspection such that its dislodgment likely occurred through a “wrongful act or omission” in that regard.

Bramich v Transport Accident Commission [2022] VSC 330 Forbes J, 15 June 2022

source https://cartercapner.com.au/blog/insurer-defeats-cyclist-road-debris-injury-claim-due-imprecise-expert-evidence/

Appeal court overturns shoulder injury “failure to refer to specialist” ruling

Misunderstanding the extent of shoulder injuries and failure to refer to specialist review are frequent episodes in the agenda of those who scrutinise medical conduct.

Their attention should be directed to the circumstances of Jeshua Chester – a twenty something plasterer – who arrived at a country hospital at the end of a night of drinking during which he injured his left shoulder.

He was seen just before midnight by a doctor who placed his arm in a broad arm sling before discharging him with Panadol, Nurofen and an icepack and directing him to return the following day – 1 August 2009 – for an X-ray.

The radiologist reported a ‘Dislocation of the left AC joint has occurred’, in reference to the acromioclavicular joint in his left shoulder.

The doctor who saw the patient at the Busselton Hospital following the X-ray, recorded he had an ‘A/C joint dislocation’.  The same doctor prepared a Discharge Summary recording a diagnosis of ‘AC joint subluxed L shoulder’.

He was again given analgesia and advised to consult his GP in two weeks. Chester’s recollection was that he was told to keep his arm in the sling for four – six weeks and that – with steady improvement – would be back to work in six weeks.

Jeshua attended on on his GP on 2 August with the Discharge Summary when the GP noted ‘left AC jt subluxation … x-rays confirm this’ with some improvement in his pain level but shoulder mobility still reduced.

By September – with heightened pain whenever he took weight through his shoulder – GP Anthony Taylor referred him to Bunbury orthopedist John Openshaw who eventually performed reconstruction surgery in February 2010.

Notwithstanding the successful surgery, Chester continued to suffer pain in the left shoulder and restrictions in terms of his daily activities.

He filed injury compensation proceedings against the Busselton Regional Hospital for misdiagnosing the shoulder injury as a subluxation and failing to promptly refer him – in August 2009 – for orthopedic review.

Notably the hospital had not classified the grade of AC joint injury Chester has sustained.

The WA District Court heard that AC joint injuries range from a partial rupture of the ligaments (grades 1 & 2 that are referred to as a subluxation); a complete rupture (grade 3) and one also rupturing the coracoclavicular ligaments and displacing the clavicle (grade 5).

Grade 3 and 5 injuries are properly described as a dislocation, where the displacement is vertical and upwards. Grade 4 and 6 dislocations are rare and involve horizontal displacement of the clavicle in either a posterior or an anterior direction.

Judge Bruce Goetze found that Chester had suffered a grade 3 dislocation but concluded that notwithstanding “failures by the hospital medicos,” Chester had failed to establish that an earlier referral to an orthopaedic surgeon would have led to earlier reduction surgery and that such surgery would have left him with a better outcome.

Chester’s appeal required a consideration of the issues from a different perspective.

The appeal judges ruled that the primary judge’s finding that Chester had failed to prove the earlier surgery would have achieved a better outcome should be overruled because he had failed to provide adequate reasons for that finding.

The appeal court noted expert witness evidence regarding patients in manual occupations like Chester was to the effect that reduction surgery should be carried out within two to four weeks post injury to return the clavicle back into position.

“It is well accepted that surgery performed soon after the injury is easier than later surgery,” the appellate judges observed.

If such surgery is not undertaken within that time frame, it will invariably be necessary to reconstruct the shoulder by excising the distal end of the clavicle which can be the cause of chronic pain.

The court also acknowledged though, that there are competing views among competent orthopaedic surgeons as to whether conservative or surgical treatment is optimal for this kind of injury.

Noting that the plasterer’s case was not simply a complaint about delay but rather that the early reduction surgery would not have required excision of the distal end of the clavicle, they ordered a retrial.

Regrettably there were many issues that the learned trial judge had not adequately address and “which this court cannot determine merely from the record”.

“An order for a retrial must always be an occasion for regret; perhaps more so in a case such as this, where the relevant events were many years ago,” they observed.

Chester v WA Country Health Service [2022] WASCA 57 Quinlan CJ Mazza JA Beech JA, 2 June 2022

source https://cartercapner.com.au/blog/appeal-court-overturns-shoulder-injury-failure-to-refer-to-specialist-ruling/

Does antidote to road authority immunity require knowledge of specific danger?

With what degree of specificity must the risk of a particular injury have been foreseen by a wrong-doer, to neutralise road authority immunity for liability bestowed by Civil Liability Act s 37.

Consider the case of Ricky Eddy whose route to his local Coles for bread and milk on a Sunday evening in April 2017 required the negotiation of two ramps to cross above footpath paving work being conducted by the local council.

The paving work had been done in stages in the course of which temporary ramps were placed along the route to facilitate customers crossing into the shopping centre in which the supermarket was located.

As he ascended the first ramp, it slipped out from under him, causing him to fall heavily to the ground and sustain a serious injury.

The council had twice been notified about problems with ramps in the work area in the weeks leading up to Ricky’s fall.

When he sued the Goulburn council in the NSW District Court, it accepted liability for securing the ramps notwithstanding the work was undertaken by a contractor.

The council had in fact engaged personnel to twice daily check the works including to confirm the ramps were secure. If not, it was the council worker’s task to secure them.

Regardless, the council claimed immunity as “a road authority” under s 45 of the NSW Civil Liability Act which immunises it against all liability “for harm arising from a failure to carry out road work” unless at the time the damage was sustained, it “had actual knowledge of the particular risk the materialisation of which resulted in the harm”.

The provision has its analog in s 37 of the Queensland Civil Liability Act.

Eddy contended the council had indeed been warned about the defects in the ramp by way of the notifications that it had received as to their steepness and instability.

Against that submission, Judge Wendy Strathdee found that the ramp Eddy encountered – being of the smaller, temporary variety – was of a different type to those the subject of the two prior notifications.

She dismissed his claim and ordered he pay the council’s costs of the special hearing convened to decide the liability immunity issue.

The Court of Appeal took a different view, concluding that the second notification council received was likely to have been in respect of the same kind of ramp as that on which Mr Eddy fell.

It had actual knowledge of the risk – so ruled the appeal judges – that the smaller, temporary ramps without handrails which were involved in Mr Eddy’s fall were unstable unless secured.

But the primary judge had also concluded that whatever knowledge it possessed of the lack of safety of the ramps in use, there was no evidence the council knew of the danger of the “particular” ramp on which Mr Eddy fell or even that it was unsecured.

To overcome that finding, Eddy argued on appeal that the council’s actual knowledge of the unsafe features of the type of ramp on which he fell – namely that they could be unstable and dangerous unless secured as was often the case – was sufficient to engage the s 45 antidote because it was knowledge of the “particular” risk.

The appeal judges agreed.

They acknowledged the word “particular” in s 45 required some specificity in relation to the identification of the risk but in “practical reality” did not require knowledge of every aspect of the precise causal pathway that led to the claimant suffering harm.

The court noted with approval the Qld Court of Appeal decision in Goondiwindi Regional Council v Tai.

In that case the appeal judges to the North ruled the council did not need to have knowledge of the particular pothole into which the plaintiff’s motorcycle collided. Rather, the relevant “risk” of which the council was held to have been aware, was of the potential presence of potholes on the causeway that presented a danger to motorists.

Such an outcome was in accord with the provision’s purpose – noted the appeal judges to the South – namely to limit the liability of road authorities for omissions unless they have actual knowledge of the particular danger and have had some opportunity to respond.

Factors likely to be important in this regard include the road authority’s actual knowledge of the location and of the nature of the risk to be found there.

It would though be quite artificial, they observed, to require “backwards-looking” knowledge of “the precise events leading to the damage complained of”.

Just as it is artificial to require a claimant to prove a defendant ought to have foreseen the precise risk of injury – “forward-looking” – when assessing breach of duty; and similarly in relation to assessing what risk may have been “obvious” to a claimant.

The risk of which the Goulburn Council had actual knowledge here “was a very specific risk” – that the smaller, portable ramps being used at the site were unstable, creating a risk of injury, unless secured – in a very specific area.

“That risk did not depend upon the placement of any particular ramp at any specific time,” so ruled the court. “Rather, it related to a dangerous feature of the types of ramps being used on the worksite”.

The council did, therefore, have actual knowledge of the particular risk the materialisation of which resulted in the harm within the meaning of the s 45 antidote provision.

The matter remitted to the District Court for determination of Mr Eddy’s substantive claim.

Eddy v Goulburn Mulwaree Council [2022] NSWCA 87 Bell CJ Gleeson JA Kirk JA, 7 June 2022 Read case

 

source https://cartercapner.com.au/blog/does-antidote-to-road-authority-immunity-require-knowledge-of-specific-danger/

Party hosts liable for lapse in precautions and unlimited alcohol

A party guest who was set alight with petrol while camping out at his host’s Darling Downs grain farm has won substantial damages for the burns he sustained from a prank intended to get him to re-join the celebration.

Terry and Nicole Ryan – who hosted their son’s 21st birthday celebration in February 2019 – set aside a safe area for guests to sleep outdoors to ensure no one would drive home from the Jondaryan property while affected by alcohol.

Charles Dearden – one of more than 100 guests who stayed over – was burned when his school friend poured petrol onto his swag and set it alight while he was in it asleep.

The Ryans knew it to be “naïve” to expect the youths to remain sober and – on road safety grounds – provided sufficient beer and wine so no one would need to leave the farm to seek out more supplies.

Catering – for which several large cold rooms were brought in on hire – included that for the party and for a “recovery” breakfast as well as lunch the next day.

The hosts had a fire blanket and fire extinguisher in the house and took steps to remove petrol and other fuel from anywhere near the party.

Despite their meticulous planning, a power blackout occurred just as it was getting dark.

Fuel for their generators was retrieved in jerry cans from a neighbouring property. After the generator fuel tank was filled, Terry Ryan placed the full jerry cans in a difficult to access location to prevent interference by guests but left a part filled smaller one in the rear of his ute.

Fuel from that container – that Ryan thought was empty – was used by an unknown guest to light a grassfire. Even after the container was put away for a second time in a shed, another guest – Robert Taylor – found it and about two hours later, in an attempt to wake up his friend Dearden, things went horribly wrong.

“I grew up on a farm, so there’s always fuel in a shed like that,” Taylor explained.

The Ryans were met with a lawsuit from Dearden – who suffered burns to his chest, armpit and back – alleging they had failed to adequately supervise the event.

When the claim came before him in Rockampton, Justice Graeme Crow identified the risk – the foreseeability of which he had to consider – was that that of “suffering a burn injury from an uncontrolled fire lit by an intoxicated guest from petrol made available” by the Ryans.

Given the experience of the grass fire earlier in the night, His Honour had no difficulty concluding such risk was foreseeable.

That the jerry can “felt quite empty” was insufficient to displace “the reasonable expectation that a small amount of fuel was left in the small jerry can”.

He rejected the insurer’s argument that because they were “social hosts” the parents should not be liable for the actions of a guest. Nor could they escape liability because the victim was injured by the criminal act of another.

The question for the court was whether reasonable care had been exercised to prevent harm by putting the fuel in shed that was easily accessible by highly intoxicated guests “supplied with essentially an unlimited amount of alcohol” in circumstances where there had been an earlier grassfire.

“There was always a prospect that an intoxicated irrational person may start a fire” and the fuel could easily have been placed in an inaccessible part of the very same shed as later in fact occurred.

In all the circumstances, the Ryans “failed to control the continued presence upon the property of the expected irrational and intoxicated guests by supervising those guests that were acting in an unacceptable or unruly manner”.

Justice Crow was also satisfied, in the terms of Civil Liability Act s 9(2), that the potential seriousness of the harm that might be suffered from a fire – notwithstanding its low probability of its occurrence and the high social utility of conducting the 21st birthday party – a reasonable party host would have taken the minor additional precautions to safely put the fuel out of reach.

“I therefore conclude that Mr Dearden has proved that the defendants were in breach of their duty of care to him”, he ruled.

Dearden’s serious injuries cause him pain; difficulty due to his scarring in working in the heat and in the cooler months; and fatigue all of which seriously impact his capacity to earn a living on the land.

General damages were assessed at $96k and economic loss damages (past and future) at $440k, making up a total award of $601k.

Dearden’s prankster assailant – who pleaded guilty to grievous bodily harm and is serving a two-year suspended jail term – was joined to the proceedings by the insurer as a third party.

Justice Crow ordered he pay the defendants 70% of the total assessed damages ($426k) “as he has engaged in a reckless and criminal act fuelled by his high state of intoxication [notwithstanding] the defendant introduced the fuel, provided a lot of alcohol, and then failed to remove the fuel.

Dearden v Ryan & Anor [2022] QSC 111 Crow J, 2 June 2022

source https://cartercapner.com.au/blog/party-hosts-liable-for-lapse-in-precautions-and-unlimited-alcohol/