Court awards $2 mil for German tourist pedestrian accident; $900k for replacement limbs

A German holiday maker struck by a car on a footpath when its driver lost control on a Noosa Heads roundabout has been awarded over $2 mil in injury compensation damages by the Supreme Court in Brisbane.

The accident in May 2014 inflicted severe injuries on the then 24-yr-old Vincent Bosk, including serious fractures to all limbs which resulted in an immediate below-knee amputation of his left leg on arrival at Nambour Hospital.

Bosk was repatriated to Germany about seven weeks after the accident for inpatient rehabilitation, further surgery and “the difficult process of fitting and repeatedly refitting a lower limb prosthesis”.

Noosa in Queensland Australia.

He had completed his undergraduate economics degree in April 2014 before to Australia where he intended to remain for around five months before starting a master’s degree with a view to pursuing a career in international sports management.

In October 2018 – after many rejected job applications – he eventually obtained employment as a sports manager for soccer players.

QBE Insurance as CTP insurer for the at-fault driver did not dispute liability for motor vehicle accident damages and agreed many of the amounts it was called on to pay.

It nevertheless put Bosk to proof on the issues of economic loss and the cost of prosthetics, domestic aids and in-home equipment.

Justice Elizabeth Wilson observed when the damages case came before her in November that she should give judgment for past and future economic loss – as well as future prosthetic costs – in Euros because an award in that currency “best expresses the loss the plaintiff is likely to incur”.

Bosk – who Her Honour considered to be “a promising young man” – commissioned a report from orthopaedic surgeon David Morgan while QBE engaged his colleague Peter Boys to provide a countervailing opinion.

The most significant medical contest arose however from the differing opinions about the impact of the plaintiff’s injuries on his future earning capacity of occupational therapists Stephen Hoey and Xavier Zietek.

Zietek on the one hand considered that he could continue in his sports management occupation while Hoey – who noted Bosk was required to travel through Europe for two days at a time each month – thought he was unfit for any occupation that required travel because of the anxiety and physical demands it imposed upon him.

Her Honour assessed the appropriate loss of future earning capacity was 35% ie, €245 net per week resulting in an award of €182k for future economic loss over his entire working life.

As for loss of income to trial Bosk contended – with the support of forensic accountant Michael Lee – argued for damages of €108k based on what he would have expected to earn as an industrial engineer.

Justice Wilson rejected Lee’s methodology and awarded instead, €75k.

The most notable feature of the assessment was Her Honour’s award – based on the report of master orthotist, Olaf Gawron – of €529k for the cost of replacing and maintaining prosthetic limbs.

Gawron of German orthopaedic technology company Pohlig, had been involved in managing the Bosk’s prostheses since 2015.

QBE opposed Gawron’s recommendation that his patient should be supplied  sports and cosmetic limbs and contended he should make do with everyday artificial limbs for all purposes.

That argument was dismissed with Her Honour finding “it is more likely than not that the plaintiff would use both cosmetic and sports prostheses” as well as those of the everyday and waterproof variety.

The sum awarded included the cost of replacement of each variety of the artificial limbs every four years.

An allowance of €50k every three years for “technological innovation” ie improved but more expensive prosthetics, was though rejected by the court with a mere €40k allowed ”for the possibility of future technological innovation” over Bosk’s lifetime.

The total award was AUD$624k and €871k.

Bosk v Burgess & Anor [2021] QSC 338 Wilson J, 14 December 2021

source https://cartercapner.com.au/blog/court-awards-2-mil-for-german-tourist-pedestrian-accident-900k-for-replacement-limbs/

Chance & extent of future eco loss “low”: labourer wins $70k global award

An appeal court has overturned a ruling that a labourer “not very interested in obtaining employment” was responsible for his own injury and that there was no basis for any award for future economic loss.

George Meecham fell from the back of a flatbed truck when struck by the boom of an excavator that had loaded a kerb laying machine under his guidance. He sustained a fractured elbow and a shoulder injury.

Immediately before the incident he had unclipped the D-shackle from the excavator’s lifting chain and “under armed” it to the excavator operator Michael Harris for him to catch.

It was as Harris – who was not formally qualified to operate the machine and had only little experience on it – moved to his left to catch the object that he bumped a lever setting the boom in motion.

The excavator was owned by the principal contractor on the site – Savco Earthmoving Pty Ltd – but Meecham and Harris were employees of a subcontractor.

Meecham filed a lawsuit against Savco alleging negligence on its part for allowing the unqualified Harris to operate the excavator and contending that a competent operator would have prevented the accident by shutting down the boom once the loading operation was complete.

Judge Suzanne Sheridan – when the matter came before her in the District Court in Brisbane – found that Savco was negligent by allowing Harris to operate the machine but concluded the accident may well occurred even had a qualified machine driver been in control.

In doing so she accepted Savco’s submission that the accident had not been caused by its failure or Harris’s error but rather had occurred because Meechan had distracted Harris by throwing the object to him.

In exonerating Savco of liability, she provisionally assessed his damages at $39k with no allowance for loss of future earning capacity.

On appeal, the court was unanimously of the view that Savco’s negligence in allowing Harris to operate the excavator was causative of the injury.

Acknowledging that such an accident may well have occurred even when the machine was under the control of a qualified and experienced operator, Justice Phillip McMurdo – who delivered the lead judgement – observed that was not the issue that the court needed to decide.

“The question is whether Savco’s negligence, by permitting Mr Harris to operate its machine, created the risk, or substantially increased the risk,” he explained.

In his view Savco’s negligence did “create or at least substantially increase that risk” and “on a broad common sense view” it should be held to have caused Meechan’s injury.

Whereas Judge Sheridan had considered – if Savco had indeed been negligent it all – Meecham was contributorily negligent to the extent of 80%, Justice McMurdo and Justice Fraser ruled the appropriate assessment should be just 20%.

Justice John Bond differed with the majority only on that point, deciding that the appropriate measure of contributory negligence on Meecham’s part was 50%.

Turning their mind to damages, the appeal judges noted the differing opinions as to whole person impairment from orthopaedists Phillip Duke (1%) and his colleague Mark Robinson (4%) in the context of the plaintiff’s contention that his injuries would limit his ability to take up labouring jobs in the future.

Justice McMurdo noted however that “it is unnecessary for a plaintiff to establish that his injury will be productive of financial loss, and that it is sufficient to prove that there is a chance of that loss occurring”.

Given that Meecham’s injury occurred in his early 20s and that Judge Sheridan considered Dr Duke’s opinion to be perhaps “unduly hard”, the court increased general damages from $10k to $25k.

The appeal judges also thought there was a sufficient basis for future economic loss arising by reason of a permanent impairment and the risk of arthritis.

“The question here is not whether, more probably than not, a loss will be suffered,” Justice McMurdo ruled. “It is whether there is a diminished earning capacity which may be productive of financial loss. The extent of the diminution in this case is low, as is the risk of financial loss. But some allowance must be made for it”.

A discounted sum of $68k was allowed for loss of earning capacity in the future making up a total award – after deducting 20% for contributory negligence  – of $104k.

Meechan v Savco Earth Moving Pty Ltd [2021] QCA 264 Fraser and McMurdo and Bond JJA, 3 December 2021

source https://cartercapner.com.au/blog/chance-extent-of-future-eco-loss-low-labourer-wins-70k-global-award/

QantasLink not Qantas: liability trap for passengers on other airline’s aircraft

Can an airline that tickets a passenger for a flight under its name escape liability under air carriage law because the flight is conducted on an aircraft operated by a different carrier?

That was the issue that confronted Jeffrey Vock when Qantas sought summary dismissal of his claim for compensation for an injury that occurred while disembarking QantasLink flight QF2331 in April 2018 at Brisbane Airport.

In its Defence to Vock’s injury lawsuit, Qantas pointed out that – “surprisingly” – the QantasLink busines name is owned Sunstate Airlines Pty Ltd, the related company that conducted the “codeshare” flight under its own airline licence.

Too late to join Sunstate as a second defendant, Vock was called on to convince Judge David Kent in the District Court at Brisbane that his action against Qantas should be allowed to continue to trial.

“It seems reasonably clear,” noted His Honour that Queensland Health had booked the flight with Qantas through agent Corporate Travel Management.

The purpose of the flight was to allow the passenger to accompany his mother-in-law on the DHC-Dash 8 aircraft from Gladstone to Brisbane for medical treatment.

Notwithstanding that the flight was conducted under a “contract of carriage” “in an aircraft being operated by the holder of an airline licence”, Qantas contended for a strict interpretation of s 28 of the Civil Aviation (Carriers’ Liability) Act 1959 that would impose liability only on the actual carrier, namely Sunstate.

Against that contention, Mr Vock argues that the “contracting carrier”, ie Qantas shares equivalent liability to that of Sunstate.

Because the issue has not been previously decided in a domestic context – and because of gaps in the enabling State legislation – His Honour reserved the statutory interpretation contest to the trial judge.

What most occupied the court – at least in terms of the 20-page judgment – was whether Qantas was estopped from denying it was the carrier by reason of the representations it had made in the ticket and itinerary and in the publication of flight schedules.

He also argued Qantas was estoppel by reason of its solicitors’ “silence” in response to Mr Vock’s agitation being directed to Qantas when it “must have known with the limitation period expiring, the true carrier was Sunstate”.

“It is hard to escape the conclusion,” Judge Kent reasoned, “that it did nothing to disabuse the respondent of his apparent mistaken belief that Qantas was the correct defendant”.

On that argument too, there was in His Honour’s view a “triable issue” in which the passenger’s prospects of success were “real rather than fanciful”.

If not resolved sooner, the matter is likely to proceed to trial in mid-2022.

Vock v Qantas Airways Limited [2021] QDC 269 Kent QC DCJ, 23 November 2021

source https://cartercapner.com.au/blog/qantaslink-not-qantas-liability-trap-for-passengers-on-other-airlines-aircraft/

Shopper’s evidence “strains incredulity” when tested against surveillance video

A customer who failed in a substantial damages ask against Coles for an injury in its supermarket carpark has suffered the further indignity of having her eligibility for a disability pension questioned.

Jacqueline Pike had packed her groceries into her car after doing her weekly shop at the Cambridge Park store in Boomerang Place in Western Sydney.

Upon taking a backwards step into an adjacent parking bay to give herself room to shut the passenger side door, her right foot descended 20 cm into an uncapped drainage pipe causing her to fall heavily onto her buttocks and aggravate an existing spinal condition.

Coles occupied the entire allotment on and was specifically responsible under its 20-year lease for the maintenance of the car park except for fair wear and tear and items of a structural nature.

Jacqueline issued proceedings in 2017 in the NSW Supreme Court against Coles and the owners of the centre for damages including $700k for loss of income and $375k for future domestic care.

Emails and notices produced by agents Raine and Horne established that it had – on behalf of the owners – reminded and pressed Coles to fulfil those obligations with reasonable frequency.

Despite those reminders, Coles could produce no evidence that it had inspected the condition of the car park or had taken any steps to remediate any defects.

Although unable to prove the duration of the pipe’s unsafe status Justice Michael Walton was satisfied “that the hole had been open at least since the previous day but most likely for a longer period sufficient to enable the cover to be removed and for debris to accumulate”.

“In those circumstances,” he observed “Coles failed to take reasonable precautions, either by failing to have and applying any system of inspection, maintenance and repair, or adopting a system which was wholly inadequate” and was responsible for that breach.

On the other hand there was no basis for holding the owners had breached any duty in relation to the carpark’s upkeep.

His Honour them turned his mind to the permanent disability and pain – based on Jacqueline’s self-reporting – that was reported upon by numerous medical experts.

Those self-reports – and the medical evidence premised upon them – were made entirely redundant by surveillance footage that demonstrated she had significantly greater physical capacity and less restriction than she made out and had been working to a far greater extent than she had revealed.

The video footage was compelled a picture “inconsistent with the plaintiff exhibiting pain or physical limitation and…sits ill with her evidence as to incapacity to work”.

Justice Walton believed Jacqueline had “a very strong work ethic” and was not concerned – in terms of her credit – by the “trousering of a couple of $50 handed to her”.

But that’s where the latitude extended to the 48-yr old former office manager stopped.

“I find the plaintiff’s evidence is unsatisfactory, exaggerated and …in many respects strained incredulity. She has a capacity to work, even to undertake arduous work, with pain managed adequately by medication”.

Even her meeting the requirements for a disability pension must, in His Honour’s view “be doubted”.

But even with those adverse findings he allowed a global award of $50k for future loss of earning capacity and a general damages assessment “at 29% of the most extreme case”, which translates to $123.5k.

Her damages were however reduced by the $158k already paid by Coles.

Pike v Coles Supermarkets Australia Pty Ltd; Pike v Solomon [2021] NSWSC 1492 Walton J, 19 November 2021 Read case

source https://cartercapner.com.au/blog/shoppers-evidence-strains-incredulity-when-tested-against-surveillance-video/

Servo worker rolls WorkCover on “injury just waiting to happen” ruling

A long serving customer service attendant whose overuse injury was rejected by WorkCover and the Workers’ Compensation Regulator has got up on appeal by overturning specialists’ opinions to the effect that her debilitating shoulder injury was one “just waiting to happen”.

Saher Nathwani – whose duties included stocking and operating the convenience store section, console service, cleaning and fuel dispensing – had been a loyal employee at the Caltex owned service station on the Gold Coast highway in Surfers Paradise since 2008.

She sustained a right shoulder injury in 2016 from heavy lifting in the convenience store for which she received time off work benefits.

In resuming full duties – after a stint with a reduced workload while her right arm was in a sling – the “automatic” favouring of the injured right shoulder caused her to suffer a left shoulder injury from repetitive lifting of heavy weights above head height.

As her workload also increased, so did the pressure on her left shoulder.

She was though in two minds about whether and how to report her condition to her doctor because of a warning from her supervisor that a claim might have an effect on her long service entitlements.

Suspicious of the delay between the development of symptoms in July 2017 and notifying her GP six months later, WCQ rejected Saher’s February 2019 application for assessment of the degree of her permanent impairment after coming to the conclusion that the injury did not arise from her employment nor was her employment a significant contributing factor.

On review, the Regulator conceded the left shoulder injury but ruled – relying on opinions from orthopedist Peter Dodd and occupational physician Andrew Lingwood to confirm the WCQ decision – she had a degenerative condition and the “employment was merely the setting in which the natural process of the idiopathic disease emerged”.

Dr Dodd’s view was that “just because an individual gets pain at work doesn’t necessarily mean to say the pain was caused by work”.

Armed with an opinion from Malcolm Wallace contrary to those of his colleagues, Saher appealed to the Queensland Industrial Relations Commission for a ruling that the overuse injury arose from her work at the Caltex servo.

At that hearing, it was accepted that she was frequently required her to reach above shoulder height to get at stock and lift items of 15kg to 20kg in weight.

Despite the Regulator’s attack on Saher’s credit and what it argued was ‘self-serving’ evidence, Deputy President John Merell found her account of what she claimed had occurred and what she re-told to the various medical examiners to be “generally consistent”.

“I accept her as a witness of credit,” he declared.

Turning to the expert reports, he judged the opinions of GP Gillian Coleclough – who had treated Saher since 2015 – and Dr Wallace who had detailed knowledge of her duties carried greater weight than those of Drs Dodd and Lingwood

“On the basis of Dr Wallace’s evidence, I am of the view that, on the balance of probabilities, Ms Nathwani’s left shoulder adhesive capsulitis arose out of, or in the course of, her employment,” he decided.

He ordered the Regulator’s decision to be set aside and a decision that Ms Nathwani has an injury within the meaning of the Act substituted in its place.

In a subsequent decision he ordered the Regulator pay her legal costs limited to the day of the hearing.

Nathwani v Workers’ Compensation Regulator [2021] QIRC 325 Merrell DP, 21 September 2021

Nathwani v Workers’ Compensation Regulator (No. 2) [2021] QIRC 351 Merrell DP, 18 October 2021

source https://cartercapner.com.au/blog/servo-worker-rolls-workcover-on-injury-just-waiting-to-happen-ruling/

Partygoer burn victim holds Rockhampton venue for $800k claim

The Court of Appeal has refused to interfere with the exercise of discretion by the Central Judge in Rockhampton as to the suitability of his court to determine a claim concerning an injury sustained near Toowoomba.

Terry and Nicole Ryan hosted their son’s 21^st birthday celebration at their rural property near Jondaryan in February 2019.

Charles Dearden – one of the 200 or so guests who stayed overnight – sustained an injury when another partygoer poured petrol from a nearby fuel can, onto his swag and set it alight while he was sleeping inside.

Alleging negligence on the part of his hosts for failure to adequately supervise the event, Dearden – who suffered burns to his chest, armpit and back – engaged Rockhampton solicitors who filed an injury compensation claim against Mr & Mrs Ryan in the Supreme Court there in April 2021.

Their liability insurer promptly filed a Defence to the $800k claim and an application to have the proceedings transferred to Toowoomba or alternatively, Brisbane.

The application came before Justice Graeme Crow in June and was duly refused on the grounds that neither convenience nor fairness favoured a transfer to another location.

Among other things His Honour considered a trial in Rockhampton would probably occur more quickly than elsewhere.

Dissatisfied with the outcome, the insurer appealed, complaining such assessment was unreliable given it was made many months before the action would be ready to be listed for trial.

That contention was rejected by the appeal judges.

“His Honour’s assessment was obviously premised on listing probabilities rather than certainties,” noted Justice Jim Henry in delivering the lead judgement. “As the resident judge in sole control of the Rockhampton Supreme Court list, he is well placed to assess those probabilities”.

The insurer also criticised Justice Crow’s rejection of its submission that the comparative cost of witness transport and accommodation would be higher for a Rockhampton trial than for one in Toowoomba.

His Honour had though “repeatedly explained” that the issue of witness attendance costs was something about which he “could not reach any firm conclusion”, because it was not then known which witnesses would likely be called to give evidence.

On the same grounds he had declined to accept the proposition that – because of the location of the event and the places of residence of the attendees – the majority of witnesses would be drawn from Darling Downs and Brisbane areas.

Justice Henry concurred in the rejection of those arguments.

The fact that more potential witnesses resided in SEQ didn’t mean that the majority of witnesses who give evidence would be from that region. Such logic would only have been useful, he observed, if the witnesses were known and identified at the time Justice Crow had made his ruling.

The judge’s exercise of discretion was well within the bounds of reasonableness and given that it was one relating to procedure rather than to substantive rights, should not – the appeal judges agreed – be interfered with by an appellate court except in the case of a substantial injustice to a party.

The onus was on the insurer to establish such injustice and having failed to do so, the appeal judges unanimously rejected its appeal.

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

Dearden filed a Request for Trial last week suggesting the trial is likely to proceed in short order at Rockhampton.

Ryan & Anor v Dearden & Anor [2021] QCA 245 Bond JA and Boddice and Henry JJ, published 22 November 2021

source https://cartercapner.com.au/blog/partygoer-burn-victim-holds-rockhampton-venue-for-800k-claim/

Emirates Airlines crashes on second attempt to defeat claim by injured passenger

A passenger who sustained a minor cabin injury aboard an Emirates B777 and who chose to sue in Australia has achieved a major legal breakthrough for all Australian international airline passengers.

Stephen Bradshaw boarded the flight to Brisbane via Dubai in Dublin in January 2019. It was shortly before arrival into Dubai that a hard-shell child’s Trunki suitcase fell out of an opened overhead locker as the aircraft banked and struck him on the right temple causing an observable red mark and a headache.

Although the 28-yr-old could also have sued in Ireland or indeed in the U.A.E. for his resulting neck injury, the Australian resident chose to run the gauntlet of the anti-consumer NSW Civil Liability Act (CLA) by starting his injury compensation proceedings in the Federal Court in Sydney.

When he filed his lawsuit against the airline for compensation, the decision Grueff v Virgin Australia – adverse to his prospects – had yet to be delivered by the very same court.

What Grueff – which concerned a Virgin aircraft cabin injury en route from Bali to Sydney – had decided was for the 15% general damages barrier in CLA s16 to be “picked up and applied” to the award of compensation for “bodily injury” under the federal Civil Aviation (Carriers’ Liability) Act (CACLA) which applies the Montreal Convention.

Philip Grueff – who sustained symptoms of poisoning after being served contaminated water mid-flight – was denied damages because his stomach cramps, nausea, diahorrea, fatigue, anxiety etc could not be said, without interpretative expert medical evidence, to be a “bodily injury”.

Justice John Grifiths went on however to venture that because CACLA itself does not specify how international injured passenger damages are to be formulated, the CLA had to be used as “surrogate federal law” to fill in the gaps.

As in the case of Philip Gruelf, the injury for which Stephen Bradshaw sought compensation from Emirates Airlines, was relatively minor.

With conflicting accounts of the aftermath of the event and his complaints about symptoms, Justice Angus Stewart noted Bradshaw – who had unsuccessfully requested to be moved into a business class seat – “never sought any medical or physiotherapeutic advice or treatment for the injury or any referred pain”.

He assessed general damages at just $5k but as the injury fell well short of the CLA s16 15% impairment threshold, he could only award it to Bradshaw if the section had no application.

Judiciary Act, s 80 would – he reasoned – only “pick up” the “common law in Australia as modified by the Constitution and by the statute law in force in the State” if CACLA’s provisions were “insufficient to carry them into effect, or to provide adequate remedies”.

In his view though CACLA and the Montreal Convention of themselves provide a complete cause of action for the recovery of compensatory damages for “damage sustained”.

In the absence of any “gap”, no s 80 recourse was required – His Honour observed – to the common law or other law. And because the CACLA “otherwise provides” nor did s 79 (1) apply.

As in TPA and ACL cases, a claimant’s entitlement to CACLA damages has, Justice Stewart explained, a statutory source in which the court’s task is “to select a measure of damages which conforms to the remedial purpose of the statute”.

To apply that part of the CLA containing the 15% general damages threshold to international carriage cases would, Justice Stewart observed, “fundamentally distort the structure of the rights and interests of carriers and injured passengers as expressed in the Montreal Convention”.

“The two regimes are substantially different and inconsistent with one another,” he wrote in his 40 pages of reasons. “To pluck one component out of one scheme and impose it on the other would create such distortion as to be in conflict with that other scheme”.

The means of assessing damages was analogous to the common law because those norms had been relied on over the years “indirectly as a source of guidance”. That exercise concerned only assessment of damages and was not a necessary component of arriving at the remedy itself.

Justice Stewart’s ruling substantially accords with that of Justice Andrew Keogh in the Victorian Supreme Court who rejected a similar submission from Emirates in 2018 in which it relied on Judiciary Act s 79 in an endeavour to defeat a injured passenger claim by importing Victoria’s anti-consumer Wrongs Act provisions.

The ruling takes precedence over that of Justice Griffiths as his decision was ‘obiter’, ie strictly unnecessary for the determination of Mr Grueff’s case which was decided on the basis Mr Grueff had no ‘bodily injury’ to start with.

Bradshaw v Emirates [2021] FCA 1407 Stewart J, 12 November 2021

Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501 Griffiths J, 12 May 2021

source https://cartercapner.com.au/blog/emirates-airlines-crashes-on-second-attempt-to-defeat-claim-by-injured-passenger/