Horse breaker wins $1.4 mil: appropriate co-worker should have been big and strong

Sean McCormick had registered his concern that the assistant with whom he had been paired in his contracted role as a horse breaker on a thoroughbred  stud near Picton NSW was of “small stature”.

Melanie Bolwell was not suited to the task – he had complained – because at 45kg and standing just 155cm tall, the apprentice jockey had insufficient strength to control flighty steeds in the course of the breaking-in process.

In December 2014, while conducting a weight-testing session with a two-year old mare, McCormick was injured when the horse – under Bolwell’s control as he was mounting it – reared and threw him to the ground.

The worker – who by then had himself broken in about 500 horses and assisted in the breaking-in of many more – sustained injuries to his back, neck and shoulder for which he filed a lawsuit in the NSW District Court.

His case relied on expert evidence from Garry Matthews to whom objection was taken by the Mt Pleasant Stud Farm.

Matthews too had had decades of experience: 20 years as a professional jockey; 8 years of breeding and training endurance horses; and 30 years as a horse trainer.

He also claimed a specialised knowledge of equine behaviour and training as well as desirable attributes of personnel who ought to be involved in the breaking-in process.

The expert supported the case that McCormick should have been assisted by someone “big, tall and strong”.

Judge Margaret Sidis agreed found the stud was in breach of its duty of care in failing to adequately consider the risk to which McCormick was exposed by reason of him being teamed with an assistant who was not capable of controlling intemperate bloodstock.

Mt Pleasant appealed against the acceptance of Matthews’ evidence contending he lacked the expertise for many of the opinions he expressed.

One such example was his statements concerning the equine “mammalian and “reptilian brain” and that they had a “practically a non-existent frontal lobe”.

The appeal judges agreed that such assertions may well have been beyond his expertise as a trainer if taken literally but could nevertheless be understood as “an eccentric way of expressing learned conclusions about the behaviour of horses”.

They ruled that the trial judge had been entitled to accept his evidence, the effect of which was that “the bigger and stronger an assistant, the more likely a horse will yield to them”.

Mt Pleasant also attacked the primary judge’s conclusion that the testimony of its sole director Roderick Hamilton was “unreliable”.

Appeal judges Richard White, Paul Brereton and Jeremy Kirk were loath to interfere with Her Honour’s conclusion as to the witness’s credit.

“The impressions formed by seeing and hearing a witness are not limited to impressions of demeanour in some narrow sense of what is observed,” they noted. “What is heard, the context of the evidence, the tone in which evidence was given may [also] be important”.

In any event, they concluded that the adverse findings against Hamilton on credit were justified.

They further observed that the trial judge’s findings on breach wasn’t based just on the increased risk of injury that arose from the stud’s conduct.

The requisite additional finding – that the risk “came home”, ie the defendant’s breach materially contributed to the occurrence of the injury – had also been made.

Mount Pleasant also contested numerous factual findings including the causal link that McCormick’s accident would have been avoided – as attested to by expert Matthews – by providing him with an assistant handler “of suitable size, experience, height, stature and strength”.

Such link had been proved said the appeal judges. The failure to provide an assistant of appropriate strength and stature had – on all the evidence – substantially increased the risk of the event that had caused the injury.

The appeal was dismissed. Judge Sidis’ award of $1.4 million in damages to McCormick, stands.

Mt Pleasant Stud Farm v McCormick [2022] NSWCA 191 White JA Brereton JA Kirk JA 23 September 2022 Read case

source https://cartercapner.com.au/blog/horse-breaker-wins-1-4-mil-appropriate-co-worker-should-have-been-big-and-strong/

Train accident calamity: over-eager passenger dragged between carriage and platform

A commuter who fell between the edge of the platform and a train after thrusting her arm between the closing doors of the carriage she was attempting to board, has won substantial damages from the commuter network for the train accident.

Aluk Chol took her time to get up from her seat in August 2016 as the Guildford train pulled into Auburn station.

After collecting her shopping bags, the 46-yr-old immigrant from South Sudan approached the doors of the carriage while at the same time, they started to close.

She threw out her right arm between the closing doors but they did not re-open.

The sensors indicated on the train guard’s panel that the doors had safely closed and the guard allowed the train to start to move off.

At the same moment Aluk was pulled down and fell into the gap – while holding on to her handbag whose strap was still caught between the doors – and was dragged along as the train accelerated away before coming to a stop after the guard raised an emergency alarm.

Her catastrophic injuries included a ruptured bladder; substantial pelvic fractures; spinal fractures; and neural damage to her back and legs.

Aluk filed a lawsuit in 2019 alleging that Sydney Trains had an inadequate system in place at the station to ensure that the train did not depart whilst she was in a position of danger.

She also contended that rail staff had seen her approach the carriage doors and allowed it to depart instead of taking steps to ensure that it did not move until she was away from the platform edge or had boarded the train.

The claim came before Justice Richard Cavanagh in the NSW Supreme Court.

A station attendant explained the safety system involving the holding up of a white flag when signalling from the platform that it was safe for the train to move on and a red flag to signal for the train to stop or stay put.

He agreed that a person standing on the white line on the edge of the platform- beyond the yellow line – was in a position of extreme danger warranting the raising of a red flag.

Experts called by each party agreed the train guard could see that the plaintiff was in contact with the train and could have delayed the departure of the train or reopened the doors which – in either case – would have likely prevented the accident.

The plaintiff identified the risk of harm as being one of a passenger being caught in the closing doors of the train and being injured if the train commences to move before he or she is clear of the train.

Given such risk was reasonably foreseeable and not insignificant, the train operator was required to take care in ensuring her safety.

It also emerged that it was common knowledge among rail staff, that from time to time, passengers sought to rush towards trains as the doors closed to squeeze between them.

Justice Cavanagh rejected the defendant’s contention that she had fallen because she was intoxicated or simply lost her balance.

“She fell because of train started to move while her handbag was caught in it [and] was in some way pulled over, leading to her falling between the train platform”.

His honour went on to conclude that an adequate system was in place and that the defendant could not be required to stop its trains every time someone attempted to board late by banging on a carriage door.

He found though that the train guard had mistakenly concluded that the passenger had been moving away from the train when he allowed it to move off.

The system had therefore not been adequately complied with.

“I am satisfied that the plaintiff’s accident was caused by a casual act of negligence on the part of the guard [failing] to ensure that the plaintiff had moved away from the dangerous position that she was in before he allowed the train to move”.

That said, he ruled there had been contributory negligence on the part of the passenger of 33%.

General damages were assessed for her severe life-long disablement at $400,000. Future care – at 3 hrs every day – was allowed at $800,000 and $187,000 was allowed for the period up to trial. No claim for income loss was made.

The total assessment of $1.76 million was reduced by the contributory negligence finding, to $1.18 million.

Chol v Sydney Trains [2022] NSWSC 1266 Cavanagh J 21 September 2022 Read case

source https://cartercapner.com.au/blog/train-accident-calamity-over-eager-passenger-dragged-between-carriage-and-platform/

Left unconscious in the back of hot car: does CTP apply to heatstroke injuries?

CTP insurance responds to an injury compensation claim arising out of someone else’s negligence if the injury results from – among other things – the “driving” of the insured vehicle.

How far does the policy extend where the negligence alleged is the driver having parked or stopped the insured vehicle at a place that exposes others to danger?

In January 2012 Ronnie Kravits (not her real name) was found unconscious by her parents in the back of a car at Brighton in Melbourne.

The 19-yr-old had passed out two days earlier after injecting herself with heroin in the company of her friend Jessica and Leonard Montague who had supplied the drug.

After moving her to the backseat of the car, Montague drove to the Crown Casino where he parked while they went inside to play the tables.

They returned from the casino to the locked vehicle a few hours later to find Ronnie still unconscious on the backseat.

Montague then drove to Brighton and parked in a street near his home. He left the car – with its windows up – without returning. Ronnie was still in the back.

Over the two days that the applicant lay unconscious in the vehicle, the outside air temperature reached 31 degrees with that inside topping 40.

When discovered at 11:00 pm her body temperature was recorded by ambulance officers at 41 degrees.

Her injuries included heatstroke, hyperthermia, cardiac arrest, multiple organ failure, bilateral pulmonary emboli, severe motor neuropathy and paraplegia.

Ronnie filed a lawsuit in December 2019 against the driver, Montague.

Her claim was dismissed in June 2021 on the basis that vehicle’s use as a place in which to inject was “utterly foreign to its character as a motor vehicle” and not incidental to its normal use.

Further, she had remained in the vehicle from having been rendered unconscious and immobile by the injection of heroin, “not as an incident of being transported from Southbank to Brighton”.

Ronnie contended on appeal that the trial judge had erred by failing to properly consider the causal relationship between her injuries and the location in which the car was parked and the external conditions there.

The policy extended beyond – she argued – injuries directly caused by “driving” to those where the causal connection between any aspect of driving of a vehicle and the injuries was established.

Appeal judges David Beach, Richard Niall and Cameron Macaulay agreed.

They observed that the vehicle’s use as a place for ingesting drugs was irrelevant in that in that such activity long preceded the actions of the driver that relevantly contributed to Ronnie’s heatstroke injuries.

“The fact that there was no collision was no bar to a conclusion, that the applicant’s injuries arose out of the use of the vehicle,” they ruled in a joint judgment. “The manner and place in which he parked the vehicle caused its internal temperature to rise to a level which was unsafe”.

“The temperature within the car was plainly a consequence of the physical features of the vehicle and the driver’s decision to park it outside and exposed to the elements”.

Damages are yet to be assessed in a separate hearing but given the extent of the heatstroke injuries, it would be surprising if they were not to exceed $2 million.

Section 5 of the Motor Accident Insurance Act in Queensland requires the injury – to be compensable – to have occurred “as a result of the driving of the motor vehicle”.

It is therefore unclear whether the Victorian decision would have application in Queensland either to claims by will the injured person or for example parents as a result of ‘nervous shock’ following a child tragedy.

Because though there is no temporal requirement – the section referring only to “the driving of the motor vehicle” not requiring that the injury occurred “while a motor vehicle is being driven” – it is arguable that a Queensland CTP policy would respond to such an injury if it were to occur here.

RBK v Montague [2022] VSCA 183 Beach, Niall and Macaulay JJA, 31 August 2022

source https://cartercapner.com.au/blog/left-unconscious-in-the-back-of-hot-car-does-ctp-apply-to-heatstroke-injuries/

Ruby Princess zombie cruise: consumer access to class actions under attack

North American guests aboard the Covid infected Ruby Princess zombie cruise have suffered a setback in their efforts to recover compensation from the cruise line for their devastating experience.

Nearly 700 of the 2600 passengers aboard the February 2020 Sydney – New Zealand – Sydney cruise purchased tickets on “US terms” that only allow lawsuits against cruise giant Carnival if filed in California and only if they are not by way of class action.

The Federal Court in Sydney dismissed Carnival’s application to prevent all “US terms passengers” participating Susan Karpick’s action on behalf of all guests – most of whom were from Australian and New Zealand – so their claims could be heard in California under US law.

That was in September 2021.

Twelve months later, the Federal Court of Appeal has reversed that decision but in doing so has identified several features of “unfair terms” laws and class action procedure that are likely to require consideration by the High Court before they are finally resolved.

First was whether the Carnival terms and conditions were duly incorporated into the passenger’s contract.

On this point Justice Angus Stewart had ruled in the negative, concluding that the Cruise line’s terms and conditions could not be imported into the contract after payment had been made and passage had been confirmed.

All appeal judges came to the opposite conclusion by applying “conventional” rules for advance ticket purchases, namely that the ticket is treated as an offer by the carrier to carry on the terms of the ticket, which terms may be accepted or rejected by the passenger upon them having had a reasonable opportunity to consider same.

Such rule applied even though “realistically”, a passenger has no choice but to accept them.

Second was whether a “class action waiver” clause is unenforceable by operation of Part IVA of the Federal Court Act itself.

Chief Justice James Allsop and Justice Roger Derrington – together with primary judge Angus Stewart – were of the view that Part IVA did not of itself prevent a party from contracting out of their class action entitlement given the absence of any provision in the Act preventing such an outcome.

Justice Steven Rares – in arriving at a robust conclusion to the contrary – examined the ‘all in’ / ‘opt out’ nature of Australian class action laws which confer a right on anyone to commence a representative action where there are common questions of fact or law ,without needing any group members’ consent.

Just as an “entire agreement” clause in a contract can’t prevent a party subsequently alleging misleading or deceptive representations, a party can’t – he reasoned – be prospectively precluded from becoming or remaining a class action group member.

In his view, the construction favoured by the majority would “negate” the legislative intention to enhance efficient access to justice and “undermine” parliament’s choice of an opt out, rather than opt in, model for representative proceedings.

Permitting such waivers – Justice Rares determined – would ultimately lead to businesses routinely including a class action waiver clause in standard form contracts thereby “neutering” the court’s jurisdiction over the determination of litigation involving common questions of fact or law.

He enlisted for support, a 2021 decision by the British Columbia Court of Appeal which ruled that a class action waiver “is contrary to public policy and unenforceable” because it “so functionally interferes” with access to the courts.

The Third major issue was whether Justice Stewart was correct in concluding that a class action waiver clause was an “unfair term” that offended Australian Consumer Law s 23.

Justices Allsop and Derrington ruled to the contrary – at least in the context of acquisition of services by a person outside Australia – because Carnival had a legitimate interest in avoiding the burden of class actions.

According to the latter, class actions “can be abused to oppress defendants by the enormous costs billed by the claimants’ legal practitioners and the large portion of recoveries required by funders. They have the potential to impose in terrorem settlements on defendants”.

“The enormity of the claim together with the costs of defending it provide a significant incentive for a defendant or its insurer, to attempt to settle rather than face the ruinous sequelae of an adverse judgment”.

The majority came to the same conclusion in relation to the issue No 4 – the fairness of the exclusive jurisdiction clause – because of the Cruise giant’s legitimate interest in requiring actions brought against it to be conducted in the jurisdiction from which it carried on its business.

They noted however – as was the case with the class action waiver – different considerations might apply if such a provision was sought to be enforced as against a consumer who acquired Carnival’s services in Australia.

Justice Rares dissented – being of the same mind as Justice Stewart – by holding that the exclusive California jurisdiction clause should not be enforced because it would oust that of the court which in any event was “not clearly an inappropriate forum”.

Fifthly, the court addressed whether ACL s 23 should be allowed to operate extra-territorially upon any corporation carrying on business in Australia by operation of s 5 (1)(g) of the Competition and Consumer Act.

No final decision on this point was necessary and the majority expressly stated that the decision should be left for another occasion.

Justice Derrington was though inclined to a negative view while the Chief Justice thought that it might apply extraterritorially in some circumstances.

It is not unrealistic to say that the decision represents a crossroads for the future of class actions and the scope of unfair terms laws in Australia. The path which each of these issues follows can only be resolved by the High Court.

Carnival PLC v Karpik (The Ruby Princess) [2022] FCAFC 149 Allsop CJ, Rares and Derrington JJ, 2 September 2022

source https://cartercapner.com.au/blog/ruby-princess-zombie-cruise-consumer-access-to-class-actions-under-attack/