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/