Previous Articles
Child knocked off bicycle by driver travelling at 40kmph
A recent District Court case (Marshall v Wensink 2009 WADC 34) explored whether a driver driving at 40kmph was nonetheless negligent when a young cyclist crossed in front of him without stopping. It is an accepted principle in our law that drivers have an obligation to exercise special care when they know or suspect that children are likely to be in the area. This is because children are known to behave in an unpredictable ways. In this case the driver also raised the recent High Court decision (Derrick v Cheung) which exonerated a driver from negligence where a child had run into the path of his vehicle from between cars parked on the side of the road. In that case the Court held that the event was unforeseeable. However in this case the Court found in favour of the child and found the driver to be negligent. This was on the basis that the driver knew that there was shrubbery and a fence along the side of the road which was going to obscure his view. He also knew that there were likely to be children in the area. In the circumstances the Court held that driving at 40kmp was not sufficient care in those circumstances. The message from this decision is that a driver must be especially careful where he knows that his vision is obscured (by for example trees, shrubs or other obstacles) and where children are likely to be in the area (for example around a school, shops, parks, sports field etc.).
Is a person in a car with a hose from the exhaust into the cab about to commit suicide, probably suffering from a mental illness?
An interesting recent High Court case considered whether the police owed a legal duty of care to a man who they caught sitting in his car in a car park on the Mornington Peninsula with a hose leading from the exhaust pipe into the vehicle with the windows all closed. On questioning the driver the police officers were told that he had been about to do something “stupid” but had changed his mind and was now going home to talk to his wife. Later that day the same man committed suicide at his house, by sitting in his car with the engine running and a hose connecting the exhaust to the interior of his car.
The man’s widow sued the police arguing that the police had breached their duty to her late husband by failing to exercise their powers under the Mental Health Act to take her ill husband to hospital in which case it would have been unlikely that he would have suicided.
The widow’s claim failed. The High Court held that at the time when the police officers interviewed the deceased that they had come to the opinion that the deceased was not mentally ill, and thereby their powers under the Act to detain the deceased and take him to a hospital were not enlivened. Until the Police reasonably thought that the man was mentally ill the police had no power to detain him.
This case is a concerning development in our law insofar as the Court was reluctant to hold the police responsible for failing to step in and rescue another person from self-harm. Although the Mental Health Act does not contain an assumption that a person attempting suicide is mentally ill, one wonders in what circumstances a family can rely on the Police to act to protect a mentally ill relative.
Bouncer awarded $425,000
A security officer employed at a Townsville casino who injured his back while removing an unruly patron has been awarded $425,000.
The plaintiff suffered a serious injury to his back while escorting a known belligerent patron down a flight of stairs. The Plaintiff alleged that he suffered the injury because he had not been properly instructed or trained in a safe and effective manner on how to remove unruly and resisting patrons. One witness said that he and his fellow security officers rarely received any practical training being shown two or three simple arm locks. Other witnesses testified to the same extent saying that the form of induction did not involve any practical training except to shadow an experienced officer on a Friday or Saturday night over a period of approximately 6 weeks, and observe the officers actions.
It was accepted that had there been a system of training in place, focusing on the practical elements of removing patrons especially the pain constraint hold, the injury sustained by the plaintiff whilst escorting the patron down a flight of stairs would not have occurred.
The employer was found liable because it failed to have in place a proper system of work which would ensure that security officers were adequately trained in the use and application of such a technique.
This case is encouraging for Plaintiff’s who suffer injuries at work in circumstances where they have received very little (if any) training from their employers.
An Employer Guilty for Shooting
An employer (Gittani Stone Pty Ltd) has recently been found negligent in a case where a worker (Pavkovic) was shot by a fellow worker (Lee) outside of the workplace. Lee and Pavkovic had been involved in previous incidents. When the workers were again involved in a confrontation Pavkovic wanted to go to the police. The employer discouraged him . No disciplinary action followed.
Some months later another altercation developed between Lee and Pavkovic. Lee left work early and waited for Pavkovic at his car. Lee shot Pavkovic three times causing him serious injury. The Court found that Gittani Stone Pty Ltd had breached its duty of care in failing to take reasonable steps to prevent a foreseeable injury to Pavkovic. Gittani appealed.
The Court of Appeal (NSWCA) considered whether the scope of a duty included the prevention of intentionally caused injuries. The Court found in favour of Pavkovic holding that the employer should have dismissed Lee or given him a strong warning. Further, the employer should not have discouraged Pavkovic from going to the police. The employer had failed to control and settle friction which led to damage and injury.
Keith believes that this case may go to the High Court of Australia on how far an employer’s duty can extend. Had the shooting occurred in the factory, there would be little doubt as to the employer’s duty of care. But this shooting happened outside of the business premises. Where does the Court draw the line? Would an employer be liable if the altercation occurred in a nightclub after tension developed at work? Keith will keep watch on developments.
Elevated Life Expectancy Positive News for Plaintiffs
The High Court in Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor unanimously agreed with the New South Wales Court of Appeal in finding that for the purpose of assessing damages, projected rather than historical life expectancy tables are to be used when estimating life expectancy.
The High Court held that projected tables published by the Australian Bureau of Statistics take into account the predicted improvement in life expectancy and were more likely to give an accurate estimate of future life expectancy.
The decision will impact on all personal injuries cases in which damages are calculated according to life expectancy. In Australia, where life expectancy is increasing, the direct result of this decision will be to increase damages awarded to plaintiffs.
Mixed results for slip and trip victims in Court of Appeal
For some time claims made by pedestrians against Local Councils have been plagued by uncertainty about what is meant by ‘obvious risk’ and more interestingly, the ‘no-liability’ defence offered to public authorities in the Civil Liability Act. 2 recent decisions out of the NSW Supreme Court of Appeal add to this debate:
In Angel v Hawkesbury City Council (25 June 2008) a pedestrian fell over an uneven paver on a pavement in George Street, Sydney. The trial Court dismissed her claim on the basis that the uneven paver would have been obvious to a pedestrian who was watching out for her own safety. She appealed. The Appeal Court upheld her appeal saying that a pedestrian can’t be expected to walk with their eyes glued to the ground. It is not unreasonable to not notice a defect that would only be obvious from a short distance. In addition shadows from trees and buildings and cars obscured the defect. The defect was not common knowledge and certainly not known to the pedestrian and so the defect could not be said to be obvious. Even so the defect was obscured by shadow so she would not have noticed it even though taking care for her own safety. The Council argued that it had no knowledge of the defect and so claimed the protection of the statutory defence in the Civil Liability Act. Interestingly in her evidence the pedestrian had complained to the Council’s receptionist immediately after the accident when the receptionist told her that the pavement had already been booked for repair. The Court held that the receptionists’ knowledge most likely came from a body within the Council who had the power to repair the pavement, and therefore the Council’s defence of no-knowledge failed. She was awarded $165,000.
In the second matter, Blacktown City Council v Hocking (25 June 2008), a pedestrian stepped onto a lid on a Telstra inspection pit, the lid twisted and the pedestrian fell and suffered injuries. The pedestrian was successful at trial but the Council appealed the decision arguing that it had no knowledge of any problem with the lid so could not be expected to carry out a repair. There was evidence that the Council generally carried out inspections and from that the trial judge held that if the person carrying out the inspection had done a proper job then the defect would have been discovered. However the Appeal Court rejected that reasoning. The Appeal judges held that the pedestrian had not proven when the Council had inspected the lid (or for that matter when the Council should have inspected the lid) therefore the Court was not satisfied that the Council had knowledge of the defect. The pedestrian lost.
The lesson for all potential claimants is that to sue a Council successfully you must prove that there was somebody within the Council with power to repair the defect who had knowledge of that defect before you had your accident. To surmise knowledge is not good enough. The manner in which the relevant person had knowledge must be demonstrated.