Procedural fairness denied to DIY claimant; court dismisses $2 mil trolley appeal

A guest injured in the driveway of The Star Gold Coast while loading luggage onto a trolley has failed in an appeal to hold the hotel liable for spinal injuries for which he sought $2 mil in compensation. 

John Kleeman was about to check in with partner Liana Jackson in November 2015 when the footbrake on the luggage trolley failed causing it to roll with the luggage and pin him under the load against the rear of his vehicle.

His compensation ask for the L5- S1 spinal injury and chronic back pain which had prevented him from working was dismissed by the Queensland Supreme Court in October 2020 three days after he took a toilet break during giving evidence and never returned to the witness stand.

He failed to turn up in person or by phone on the second, third or fourth days of the trial – as he was directed to do by Justice Soraya Ryan – and failed to supply evidence that her honour thought adequately explained his absence.

Kleeman had in fact emailed a medical certificate to the registry on the second day signed by Dr White– as a result of an online consultation – stating that his patient was “suffering from a medical condition and will be unfit to continue their usual occupational duties”.

Although invited to attend the trial the following day by telephone, he emailed in to say he was “not in a position to communicate today” as “I have gastro”.

Likewise, he failed to appear of the fourth day. On the defendant’s application for a dismissal, judgement was entered against the plaintiff at lunchtime on the fourth day.

He filed a notice of appeal out of time in January 2021 contending he had been incapacitated due to “Extreme Medical reasons” it was in the interests of justice to set aside the dismissal of the claim so he could resume his argument seeking close to $2 mil in damages.

The appeal judges agreed the Doctors on Demand medical certificate “was a completely inadequate response” – in the context of the extensive public and private resources invested in a four-day trial – as it did not describe his “usual occupational duties” or his “medical condition”.

Justice Hugh Fraser in delivering the lead judgment had though “serious reservations” about the making of directions to a party to appear and an order dismissing a claim the absence of a plaintiff who had not been served with the application or the supporting material relied on.

“In my respectful opinion, the way in which r 370 was applied in this case involved a denial of procedural fairness to the applicant”.

The trial judge was however justified – he ruled – in dismissing the proceedings on another ground namely that to allow them to remain on foot and to be revived at the whim of the plaintiff would constitute an unacceptable delay amounting to an abuse of process.

“It follows that the respondents were entitled to an order dismissing the applicant’s claim simply because the applicant failed to fulfil his onus of proving his claim at the trial”.

Kleeman also appealed Justice Ryan’s refusal to grant him an adjournment which Justice Fraser was prepared to accept as “fairly arguable”.

“Full weight must be given to the fundamental requirement of procedural fairness that a party must be given the opportunity of being heard,” he observed.

That said he refused to exercise his discretion to extend the time to file the appeal by the requisite two months because the evidence against the veracity of the claim was compelling.

In particular his claims of having to cease work as a consequence of the trolley collision were directly inconsistent with evidence he gave in Ms Jackson’s NSW injury compensation claim where he had sworn he had stopped work in early 2015 to become her full time carer.

“I would not exercise the discretion to set aside the order dismissing the applicant’s claim”.

Kleeman was ordered to pay The Star’s legal costs of the trial and the appeal.

Kleeman v The Star Entertainment Group Limited & Anor [2022] QCA 119 Sofronoff P and Fraser and Mullins JJA, 5 July 2022

source https://cartercapner.com.au/blog/procedural-fairness-denied-to-diy-claimant-court-dismisses-2-mil-trolley-appeal/

Labour hire worker causes $1.9 mil accident, host employer mostly at fault

A coal mine using a hired-in workforce has been ordered to bear most of the cost of a severe injury caused by a labour hire worker.

Titan Enterprises supplied a large part of the workforce to the operator of an open cut mine at Glendale in the Hunter Valley, Mt Owen Ltd.

Glen Parkes – a diesel and heavy vehicle mechanic – was among a team of three Titan mechanics carrying out a scheduled service on a Caterpillar D10 bulldozer at the mine in July 2017.

The crew was engaged in collection of a hydraulic oil sample from the dozer by draining it from an inspection port with the machine running.

In an attempt to speed up the flow of hydraulic fluid on a cold winter’s night, crew chief Mitchell Kemp operated the blade at the front of the dozer up and down.

When the blade suddenly dropped to the ground from a height, the heavy jolt sent thru the dozer caused Parkes’ right leg to be crushed between the track on which he had been standing and a platform over which he was leaning to access the sample port.

He developed Complex Regional Pain Syndrome in his right leg which made him unfit for his pre-injury employment as a diesel mechanic in the mining industry, as well as an adjustment disorder.

Titan and the host employer each accused the other of being vicariously liable for Kemp’s negligence.

Justice Stephen Campbell had to decide that contest when Parkes’ injury compensation claim came before him in the NSW Supreme Court as well as what personal liability each employer also bore to Parkes for the injury.

In attacking Parkes’ claim they both cited his breach of a standard operating procedure – that he had signed and initialled prior to the start of the job – mandating all personnel to be “clear of the machine footprint before any equipment movement is undertaken”.

In those circumstances – they contended – it was reasonable to leave the task to their expert tradesmen without further employer intervention.

Against those arguments and the views of both mechanical engineers Ross Underwood (who gave evidence for Parkes) and Professor Bruce Hebblewhite of the University of New South Wales for Titan, Justice Campbell thought the standard operating procedure to be deficient.

It neither accounted – he reasoned – for the need to mount the machine to take a live sample; nor directed how hydraulic attachments should be operated to hasten the hydraulic flow to obtain the sample in an efficient and safe manner.

The mine operator host employer was thus held to have been in breach of the non-delegable duty it owed Parkes.

That duty was held to have been identical to that owed by Titan – ie to take reasonable care not to expose him to an unnecessary risk of injury – and of which Titan was also in breach.

“One cannot assume that the documentation of systems of work or job safety analyses are mere matters of box ticking or compliance,” Justice Campbell explained.

He apportioned fault for the accident 20% to each of them in their personal capacities, reserving the remaining 60% to whoever he found to have been vicariously liable.

Ordinarily that would have been Titan, as the negligent crew chief’s actual employer.

Titan though contended that because Mt Owen not only decided what work the crew chief was to do but also how it was to be done, it should he considered the employer for the purpose of deciding vicarious liability.

It argued that Kemp had in fact been engaged by Mt Owen for three years and was treated as virtually their own employee.

“I am satisfied on the balance of probabilities that Mr Kemp, at all material times, was the employee of Mt Owen pro hac vice,” Justice Campbell concluded.

Parkes’ injury was assessed at 40% “of the most extreme case” resulting in general damages to him of $278k out of a total award of $1.93 mil.

The mine operator must pay 80% of that sum, somewhat defeating what is seen to be an advantage of a labour hire workforce, namely to insulate host employers against the on costs of workers’ compensation.

Parkes v Mt Owen Pty Ltd & Anor [2022] NSWSC 909 Campbell J, 7 July 2022 Read case

source https://cartercapner.com.au/blog/labour-hire-worker-causes-1-9-mil-accident-host-employer-mostly-at-fault/

Pleading mishap slashes athlete’s likely due care and skill damages

A failure to plead out the material facts giving rise to an ACL due care and skill guarantee in relation to the supply of services has cost a triathlete the chance of recovery of substantial additional damages for injuries resulting from a fall while competing in the Gold Coast Triathlon.

Sally James – a doctor of psychology – was competing in the February 2018 all-ages event that started from Broadwater Parklands at Southport.

With staggered start times according to age groups, the participants included several wheelchair para-athletes.

The swim leg of the event was scratched at the last minute– apparently due to fears of contamination in the Southport Broadwater – changing it to a duathalon.

Whether or not by error on the part of the organiser, some para-athletes were on their final leg when Dr James’ group was starting out on the same part of the course.

As she arrived at a turn towards a transition area, Nigel Chaffey – an elite para-athlete – approached from behind at high-speed yelling for others to make way as he raced to turn in a different direction to the nearby finish line.

He clipped her right leg his rear left wheel, causing her to fall and apparently strike her head while he was simultaneously propelled out of his chair into a guard rail.

James gradually gained her feet and ran on to the finish. She then spoke to her coach and other participants before driving back to her home on the Sunshine Coast.

Dr James that day emailed a complaint to Triathlon Australia who conceded that the last-minute change from a triathlon format to that of a duet and an error in start times had left the potential for collisions between running athletes and the few who were in wheelchairs.

The brain injury and tinnitus from the head strike plus PTSD from the shock of the incident were enough to cause her to cease practice as a clinical psychologist shortly after. She was declared bankrupt in November 2018.

Her compensation claim came before Justice Susan Brown in the Supreme Court of Queensland for eight days – including a Saturday – in May 2021.

Although the psychologist’s “stream of consciousness” evidence – including that given under heavy cross examination – was largely accepted, Her Honour found “some exaggeration and some minor untruths”.

Having satisfied herself as to what had occurred, Her Honour went on to consider the claimant’s contention that the organisers owed her compensation for her injuries pursuant to the Australian Consumer Law.

Justice Brown upheld the insurer’s objections that the claim for ACL relief had not been appropriately pleaded.

First, although the Statement of Claim referenced section 60 and the guarantee that services would be provided with “due care and skill”, none of the prerequisites – ie the supply of services; that they were supplied in trade or commerce; that they were acquired by her as a consumer – had been alluded to.

Second, the pleading erroneously asserted that the effect of s 60 was to imply a due care and skill warranty as a term of the supply of services when in fact the provision creates a standalone statutory guarantee.

Third, and equally as fatally, the pleading failed to reference the cause of action on which it relied for the relief in respect of the alleged section 60 guarantee breach.

Subsequent submissions sought to rely on both section 236 and 267 so as to recover damages on a common law basis, when in fact the only relief available for a s 60 failure to fulfil a due care and skill guarantee is under section 267. Neither section was however referenced in the pleading.

Fourth, no attempt was made to seek damages “beyond that limited by the CLA or gratuitous care” thereby overlooking that ACL s 267 (4) specifically allows – in respect of a breach that cannot be remedied – recovery of damages for any loss or damage suffered by the consumer if it was reasonably foreseeable.

The section “provides the basis for the claim for damages,” Her Honour observed.

“Given my finding that Dr James has not pleaded a cause of action and claim for damages under s 60 and s 267 of the ACL, I do not find the claim established,” she ruled.

Fortunately her Honour was prepared to accept – against the position advance by the event organiser’s insurer – that the allegations of negligence had not been abandoned.

The negligence claim however exposed the plaintiff to the liability defences and damages distortions of the Civil Liability Act from which she would have otherwise been protected had the ACL claim been fit to pursue.

Addressing CLA ss 9 & 10, Justice Brown found the risk and probability of injury were low, the potential seriousness of the harm was high and a reasonable event organiser would have taken precautions.

The triathlete adduced evidence from engineer Frank Grigg – which was accepted by the judge – that the risk of injury could have been avoided inexpensively by the placing of cones or other markers on the congested area where the fall occurred so as to separate para-athletes from running athletes.

Barriers had after all been used in other parts of the course.

The plaintiff was then put to repelling the defences available to the event organiser under sections 13 & 14.

The risk of contact with a para-athlete in a wheelchair coming from behind at speed on a narrow bend of the course – the court ruled – was not a risk that would have been obvious to Dr James.

Nor was it an inherent risk. Nor did any negligence on the runner’s part contribute to the accident.

Justice Brown accepted the athlete sustained a mild traumatic brain injury and suffers from PTSD that gives rise to cognitive difficulties. An ISV of 8 was allowed for the dominant brain injury which – with an uplift of 8 – equated to just $29k for general damages.

Rejecting the loss of income ask at $250k per year, the court adopted $150k (less expenses of $30k) as the appropriate annual income figure to yield past loss of income at $275k and $658k for the future, after applying a 30% discount.

The total award of $1.1 mil was left subject to an NDIS refund of $177k even though none of the sums paid for by NDIS were found to have been recoverable against the defendant.

The judgement contains many useful observations as regards the complex interaction of various ACL provisions and the leading cases relating to statutory guarantees.

James v USM Events Pty Ltd [2022] QSC 63 Brown J 14 June 2022

source https://cartercapner.com.au/blog/pleading-mishap-slashes-athletes-due-care-and-skill-damages/

Fatigued driver wins $1.13 mil from employer for single vehicle accident

How can a court decide on what – among several competing factors – was the cause of a single vehicle accident in the absence of any eye-witness accounts and where the driver has no recollection of what happened?

In April 2016 Troy Matinca was near the end of a 2.5 hr commute from his workplace when on a sweeping right-hand curve, his vehicle crossed the carriageway to the right, side-swiped a tree and then crossed back to collide head-on with another tree on the opposite side.

The serious brain injury he sustained was accompanied by multiple facial fractures; a degloving injury of the right arm; and fractures from T1 to T7 of his spine.

Matinca had just completed a weekend “tour” working three 12 hour shifts from 6 a.m. and 6 p.m. Friday to Sunday as an underground coal miner at the Ulan West Coal Mine in the upper Hunter Valley.

He had set off in his Toyota Prado just after 6pm and was en route to his home at Mt Hutton in Lake Macquarie some 270 km distant from the mine, not much further on from where the accident happened.

He sued Coalroc Mining Services claiming the accident was caused by work-induced fatigue occasioned by the nature and conditions of his “drive-in, drive-out” employment.

Coalroc was negligent – he contended – in failing to take precautions to manage the risk of a fatigue-induced traffic accident on his journey home at the end of the “tour”.

Damages were agreed at $1.6 mil but liability and causation were fiercely contested.

Matinca relied for his success, on the decision of the Supreme Court of Queensland concerning another “drive-in, drive-out” coal miner who had suffered serious injury in a single vehicle collision as a result of work induced fatigue during his 430 km drive home to Monto from the Norwich Park mine.

In that case (Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304) Justice Duncan McMeekin ruled in favour of the miner on the basis that the particular risks emanated from his work activities and having to drive long distances in response to the demands of his employment.

But unlike that driver, Matinca could not recall any of the circumstances or provide any explanation for the accident by reason of retrograde and posttraumatic amnesia.

Coalroc contended that speed and a wet, slippery road surface were equally likely to have caused the accident.

Despite the absence of direct testimony of the events, Justice Stephen Campbell – adjudicating the contest in in the Supreme Court of NSW – received “a surprising amount of reliable evidence for the objective determination of what happened”.

Respiratory and sleep physician Anup Desai swore that fatigue induced accidents often involved a sole-occupant vehicle running off the road with no evidence of braking or other preventative action.

In his view the circumstances of the accident suggested driver fatigue “and that he fell asleep”.

The need for sleep and “sleep drive” – he attested – is part of human physiology “leading a person to sleep when an appropriate level of fatigue has been reached”.

Traffic engineer Nigel McDonald concluded that fatigue was the “likely cause” and explained that fatigue was a failure in cognitive processes not necessarily involving the driver falling “limp on the steering wheel ”.

His colleague Grant Johnston was of the view that fatigue could not be “isolated as the primary causal factor” and was “at best” one of a number of contributing factors, including speed and roadway conditions.

He calculated that the miner drove at 20 kph above the average speed for the journey and in excess of speed limits.

His Honour had to consider how – when the cause of the accident was multifactorial – to apply the onus of proof in cases that depend wholly upon circumstantial evidence.

He faulted Johnston’s efforts to try to isolate a single factor as being more than 50% responsible for the accident.

“This is not the legal standard in the application of the law of negligence to the circumstances,” he observed. “The common law test is to ask whether work induced fatigue caused or materially contributed to the accident”.

It was enough – he decided – that Mr Matinca proved circumstances appearing from evidence which support, “as a definite inference and more than a mere conjecture or surmise”, the finding for which he contends.

“I am satisfied that Mr Matinca’s single vehicle collision was caused by a combination of factors including speed, the prevailing driving conditions and momentary inattention caused by fatigue,” Justice Campbell concluded.

“Of these I think work induced fatigue the most significant” and constituted a very substantial and foreseeable material contribution to the occurrence of the accident.

The scenario he accepted was not one where the driver had actually fallen asleep at the wheel but one “where his muscles have completely relaxed and his grip on the steering wheel has been released”.

The miner’s failure however to sleep over night before the drive home or to “otherwise heed what must have been at least incipient tell-tale signs of fatigue” warranted an apportionment of contributory negligence of 30%.

Matinca v Coalroc (No 5) [2022] NSWSC 844 Campbell J, 30 June 2022 Read case

source https://cartercapner.com.au/blog/fatigued-driver-wins-1-13-m-from-employer-for-single-vehicle-accident/