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No Damages to Police Officer after Chase – Who is Sitting on the Fence? 900 577 aelegal

No Damages to Police Officer after Chase – Who is Sitting on the Fence?

In the matter of Moala [2020] WACIC 1, the Claimant, a Police Officer was injured whilst executing an arrest warrant for the arrest of two offenders.  The Claimant and his Police Officer partner attended to search an address, in an industrial area, after having been informed that the offenders were there.  On arrival they noticed another Police Officer running to the back of the particular compound and in an attempt to assist, the Claimant and his Police Officer partner scaled the fence.  When the Claimant had reached the top of fence, he sat there with his legs on the inside of the premises and jumped down and landed awkwardly. Placing all his weight on his right ankle he felt excruciating pain and was unable to weight bear being subsequently diagnosed with a fractured tibia and was treated accordingly. The offenders were not found at the premises.

The Claimant made an application with the Office for Criminal Injuries Compensation for compensation for the injuries suffered “as a consequence of” the incident when he scaled the fence and fracture his tibia.

To award the Claimant compensation, an assessor for criminal injuries compensation must be satisfied that the injury occurred ‘as a consequence‘ of the commission of an offence or alleged offence. There are a number of court cases which have examined the meaning of the term ‘as a consequence of’ or variations thereof.

The Australian courts have stated that the common law principles of remoteness and foreseeability were not applicable. This approach was followed by the Western Australian courts where it was said that consideration of the phrase ‘as a consequence of’ is not to determine “whether the injury was remote or proximate” but whether it was as a consequence of the commission of the offence or the alleged offence. Foreseeability and remoteness are irrelevant to that determination. The phrase “as a consequence of” therefore requires a consideration of whether the injuries suffered by a person are “causally connected” to the offence to entitle a person to compensation.

The assessor was not convinced that the common-law common-sense test of negligence is appropriate in determining whether an injury occurred ‘as a consequence’ of an offence. This is particularly so when it has been established the common law principles of remoteness, proximity and foreseeability are irrelevant. Therefore, in her view, the assessor stated that the matter was simple: as a question of fact, did the Claimant suffer an injury as a consequence of the offence? This should not be clouded by principles of common law negligence or the substitution of other expressions to reach the determination.

The question to be determined by the assessor was whether the Claimant’s injury to his ankle occurred as a consequence of those offences/alleged offences committed by the offenders OR as a result of attempting to execute Arrest Warrants issued for the offenders. The Assessor was satisfied that:

  • no offence or alleged offence occurred on the date upon which the Claimant suffered his injury;
  • the claimant attended the premises in question as a result of arrest warrants issued with respect to the offenders’ failure to appear in Court;
  • whilst the breach of Bail is an offence it is not in fact this breach which caused the Claimant’s injury;
  • the Claimant’s injury was caused whilst the Claimant was carrying out his police duties as directed in executing arrest warrants previously issued;
  • the injury arose as a consequence of the execution of the warrants and not the offence or offences upon which the Claimant relies;
  • no offence occurred at the time the Claimant was injured.

Therefore, the assessor was not satisfied that the Claimant suffered injury as a consequence of the offences for which the offenders were convicted and there were no other alleged offences which caused the Claimant’s injury and refused his application.

Disclaimer: The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.

Cyclist suffers brain injury after driver negligence 900 577 aelegal

Cyclist suffers brain injury after driver negligence

CLEARY -v- THE INSURANCE COMMISSION OF WESTERN AUSTRALIA [2019]

The plaintiff sought damages for personal injuries suffered on 27 April 2012, when a motor vehicle struck his bicycle from behind whilst he was stationary at traffic lights. The plaintiff commenced proceedings against the Insurance Commission of Western Australia (ICWA), the statutory body tasked to manage motor vehicle accident claims in WA, for the injuries sustained, namely:

  • a head injury limited to a right occipital intracerebral haemorrhage and consequential encephalomalacia (or softening of part of the brain);
  • bilateral visual field loss in the inferior left side quadrant of the eyes, as a result of the intracranial haemorrhage;
  • significant right ear laceration that required surgical debridement and split skin ear grafting from a donor site on the plaintiff’s right thigh;
  • fractures to the cervical vertebrae at C5, C6 and C7;
  • fractures to the thoracic vertebrae at T1 and T2;
  • fractures to ribs 1, 2, 4, 5, 6 and 7, with some displacement;
  • partial tear to the supraspinatus tendon of the right shoulder;
  • soft tissue injury and lateral meniscal injury causing existing degenerative changes in the right knee to become symptomatic;
  • right knee effusion and aggravation for some time at least of pre-existing degeneration of the right knee;
  • penetrating laceration of the left tibia;
  • left pleural effusion of the lung; and
  • bruising and abrasions, in particular, to the left temple, right shoulder, left elbow, right and left hands, and right posterior parietal scalp.

ICWA admitted that the plaintiff suffered the injuries mentioned above as a result of the driver’s negligence and the only issue for determination by the Court was the assessment of his damages, namely the extent of the plaintiff injuries suffered as a result of the driver’s negligence and the assessment of his lost earning capacity, both past and future.

In his particulars of damage, the plaintiff alleged that as a result of his injuries he lost significant consulting work and was unable to attend to the daily management of his business, resulting in its closure based largely on the claimed cognitive effects of his brain injury.

After multiple specialists gave evidence in regards to the plaintiffs long-term injuries the Court found that “…the effect of the head injury on the plaintiff’s cognitive abilities,…the work the plaintiff was doing became more difficult for him after the accident, it cost him more in effort to do that work, and that he derived less enjoyment from it.  However, I also find that he was able to effectively overcome these difficulties for a significant period after the accident, managing not only to sustain his pre-accident income but to substantially increase it in 2014 and 2015.

The Court concluded that “…the plaintiff’s ability to compete in that business had been reduced by his depression and loss of confidence and drive as a result of the cognitive effects of the brain injury.  In addition, I find the effects of his cognitive impairment and depression have diminished the plaintiff competitiveness in the job market generally to some extent”

The Court awarded the plaintiff $229,076 for past and future loss of earning capacity, $146,300 for pain and suffering being 35% of a most extreme case and medical costs amounting to a total of $437,328.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Criminal injuries compensation awarded on appeal 900 577 aelegal

Criminal injuries compensation awarded on appeal

NUROVIC -v- NUROVIC [2019] WADC 28

On 1 April 2014 the appellant pleaded guilty to unlawfully assaulting the respondent on 27 December 2013 and thereby doing her bodily harm in circumstances of aggravation. The respondent subsequently lodged a claim for criminal compensation pursuant to the Criminal Injuries Compensation Act 2013 (WA) (the Act) and on 10 October 2018 was awarded $47,821.95 by the assessor.

The appellant appealed that decision on the grounds that:

  • he only pleaded guilty as a result of incompetent legal advice;
  • he did not break the respondent nose; and
  • the respondent had a pre-existing medical condition.

In regard to the claim that the appellant received incompetent legal advice the court stated that “…if the appellant wished to dispute that he assaulted the respondent he should have pleaded not guilty and the matter would have gone to trial. In the four years since the plea he has not sought to appeal his guilty plea. He cannot now controvert his plea or the material facts that were read to the court upon sentencing”

In regard to the claim the appellant did not break the respondent’s nose the court stated that “…no challenge was made to that fact that the assault had caused the broken nose. The appellant cannot come to this court and say that his blow did not break her nose. If he wished to challenge the assertion which was clearly made at the court on both 1 April 2014 and 14 October 2014, he should have raised the issue then and there and it would have been dealt with by the magistrate. It cannot now be raised”

In relation to any pre-existing medical condition suffered by the respondent before the broken nose the court found “…there is absolutely no evidence that she had a pre-existing condition that would have meant her nose would have been broken in any event. Whilst any pre-existing nasal difficulty may have left her predisposed to a broken nose, the appellant simply takes his victim as he finds her”.

The respondent claimed additional loss of past and future earning capacity (the Court been allowed to received new and further evidence) and the Court stated that “…ultimately the respondent claim for past loss of earnings is really based on the fact that she had significantly more time off after the incident than she did prior to the incident and therefore she says she should be award compensation to reflect her loss of income”. However, the Court was not satisfied on the balance of probabilities that the respondent had made a case for loss of future earning capacity. Whilst it accepted that the respondent was fearful of losing her job because of the time she took off work and that the evidence established that she becomes withdrawn, the evidence also shows she was then working full-time and would be able to for the foreseeable future.

The court proceeded to increase the award and assessed it at $50,384.29 for injuries and losses in respect of the proved offence”

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Eight Surgeries and Still in Pain 960 577 aelegal

Eight Surgeries and Still in Pain

ESPINOS -v- JANE ELIZABETH POPOVIC as Executor and Holder of a Grant of Probate of the Estate of the Late EMIL POPOVIC [2018] WADC 94

The plaintiff, Barry John Espinos (Mr Espinos), first saw the late Dr Popovic, a neurosurgeon, in October 2010. At that point, Mr Espinos was aged 55, and was engaged in running a sand supply business.

On 10 November 2010, the late Dr Popovic performed surgery on Mr Espinos to rectify the back and spinal issues he was suffering from.

On 17 December 2010, surgery on Mr Espinos’ spine was commenced, however, due to an infection the surgery did not continue and had to be aborted. Mr Espinos was treated for the infection until late January 2011.

After further surgery from the late Dr Popovic in February 2011, Mr Espinos continued to suffer further symptoms, including severe neurological pain down his right leg. On 4 February 2011, a CT scan was performed. This scan revealed the misplacement of two of the screws used in the surgery. In total, Mr Espinos had undergone eight spinal operations by that time. The consequences of all of this for Mr Espinos have been disastrous.

A short time after this, the late Dr Popovic died, and his widow become the executor and was substituted as defendant in proceedings commenced by Mr Espinos seeking damages for negligence and breach of contract.

The Court found that “…there was a clearly foreseeable and not insignificant risk of injury in the form of complications in Mr Espinos’ spine. Firstly, in failing to treat the L5/S1 problem at the first surgery and performing surgery at the ‘wrong’ level in the same surgery. Secondly, the insertion of a screw into the nerve canal where the S1 nerve root lies also carries a foreseeable risk of significant injury or detriment to health. In the insertion of screws into any part of the spine, any reasonable specialist neurosurgeon must be required to take precautions against the risks involved in performing that surgery…

The Court concluded “…that Dr Popovic was negligent at surgery on 2 February 2011, and subsequently in failing to identify the misplacement of the pedicle screw and that the pain was caused by the screw. Dr Popovic’s fourth surgery, on 11 February 2011, was to address and explore Mr Espinos’ symptoms after 2 February which were directly caused by his negligence on 2 February 2011…

The Court was satisfied to the required standard that Mr Espinos’ ongoing pain and spinal symptoms were due substantially to the breaches of duty by Dr Popovic, and that his ongoing further treatment in relation to his spine and pain are as a result of that damage.

The Court proceeded to find “…judgment for Mr Espinos in the sum of $4,817,311 and… costs”.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Hardware store not liable for injuries sustained by patron during robbery 960 577 aelegal

Hardware store not liable for injuries sustained by patron during robbery

(CHIN -v- DAYMASTER PTY LTD [2018] WADC 80)

On Tuesday, 28 December 2010, shortly after closing time at the Home Hardware & Plumbing store (store), the plaintiff (Ms Chin), was assaulted in an attempted armed robbery of by three men, including the second defendant (Mr Hall).

The store was owned and operated by the first defendant, Daymaster Pty Ltd (Daymaster). At the material time, Mr Hall was employed at the store by Daymaster. Following the attempted robbery, Mr Hall and two others pleaded guilty to an offence of aggravated assault upon Ms Chin with intent to commit a robbery. Ms Chin sought to recover damages from Daymaster in respect of her injury, loss and damage sustained as a result of the assault upon her person.

Daymaster accepted that, as the occupier of the store, it had a duty of care towards Ms Chin, as a customer, to see that she would not suffer injury or damage (duty of care). The Court was required to establish the scope of Daymaster’s duty of care by answering whether:

  • the store manager was negligent by permitting the Ms Chin entry into the store after hours when all perimeter doors were not locked;
  • Mr Hall was acting in the scope of his employment with Daymaster, and if so, whether he was negligent in failing to ensure that all perimeter doors were locked;
  • Daymaster is vicariously liable for any alleged negligence of the store manager and/or Mr Hall, respectively; and
  • Daymaster failed to assess risk following the breakdown of its CCTV system over the cash tills used in the store.

The thrust of Ms Chin’s claim was that Daymaster, through its staff, did not comply with the store closing procedure by allowing Ms Chin into the store after hours when the rear sliding door had not been locked. Ms Chin’s case is that the store’s staff failed to lock this door, thereby allowing Mr Hall, the other two offenders and Ms Chin access into the building being causative of the assault.

In cases of this nature, the law states that where the nature of the harm suffered by a visitor to a premises (store) was physical injury inflicted by a third party over whose actions the occupier had no control, the relevant duty must be a duty related to the security of the visitor.  It must have been a duty to take reasonable care to protect the victim from conduct, including criminal conduct, of the third party. In such circumstances, it is exceptional to find in law a duty to control the actions, including criminal conduct, of another person to prevent harm to strangers, unless the case is one of a special relationship involving a duty to control that other person’s actions. It is trite that criminal behaviour is unpredictable and that is one reason why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.

Regarding vicarious liability, the law states that for an employer to be vicariously liable for the wrongful act of its employee, that act must have been committed in the course or scope of employment.  The difficulty is often in determining that course or scope of employment.  This can be tested by asking whether the act was authorised by the employer or was an unauthorised mode of doing some act authorised by the employer or even an unauthorised act, provided the act was so connected with authorised acts that it may be regarded as a mode, although an improper mode, of doing it.

The Court concluded that:

  • Ms Chin had failed to prove a special relationship with Daymaster, or that there is something exceptional about her status in the store as a customer, when the three offenders attempted to rob the store and assaulted her.  Although she was there after hours, the store had been secured to protect her.  Her injuries were not caused by any want of care on the part of Daymaster.  Rather, the injuries resulted from the criminal act of the offenders, over which Daymaster had no control, given the manner in which those offenders acted, Mr Hall’s acts were not committed in the course or scope of his employment;
  • that the duty of care extended to Ms   Chin in those circumstances, the claim nonetheless failed because there was no breach of that duty which caused injury;
  • aside from Mr Hall unlawfully hiding in the store and opening the rear sliding door, being a criminal act over which the manager and Daymaster did not have control, the store was otherwise secure for the purpose of Ms Chin’s safety. The manager was not negligent.  Ms   Chin’s injury was not caused by any want of care by the manager;
  • evidence points to the store closing policy having been adhered to by its employees, whether they knew it accorded with a written policy or not.  Mr Hall’s criminal activity, together with his two co-offenders, was the sole cause of Ms Chin’s injury. It cannot be said that Mr Hall’s wrongful act of unlocking the rear sliding door was committed in the course or scope of his employment. It mattered not that Mr Hall was an employee of the store;
  • Daymaster cannot be held to be vicariously liable for any failure of Mr Hall as the employee to lock the rear sliding door when his very purpose in the store was to unlawfully open that door to enable access into the store by his two co-offenders for the purpose of robbing it.

Ms Chin’s claim dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Worker not entitled to vehicle running expenses and accommodation 960 577 aelegal

Worker not entitled to vehicle running expenses and accommodation

(BRIGGS -v- WACHS – PILBARA (HEDLAND HEALTH CAMPUS) [2018] WADC 73)

The Hedland Health Campus employed Mr David Briggs (Mr Briggs) as a Registered Nurse. In March 2016, Mr Briggs was assaulted at work as a result of which he suffered an injury to his left shoulder. The employer accepted liability. In February 2017 Mr Briggs drove from South Hedland to Perth and back to see an approved medical specialist, Dr Cordova. The question which arose for determination was whether the employer was obliged to pay Mr Briggs’ vehicle running expenses, together with meals and accommodation in the sum of $1,996.08.

In order to answer that question, it was necessary for the Court to determine which clause of schedule 1 to the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) applied.

An approved medical specialist such as Dr Cordova may be required to make an assessment of a worker, the approved specialist is required to give to the worker and the employer a written report of the worker’s degree of impairment, including details of the assessment and reasons justifying the assessment and a certificate specifying the worker’s degree of impairment.

Clause 17(1aa) of Schedule 1 to the Act provides that a worker can claim for certain specified expenses for his/her first assessment or attempt at an assessment for the purposes of s 93L of the Act (which this was) but not including the cost of any travel, meals, or lodging.

Clause 19(3A) of Schedule 1 to the Act provides that where a worker travels for his/her degree of impairment to be assessed by an approved medical specialist the employer is liable to pay the worker’s vehicle running expenses, reasonable fares and expenses and reasonable cost of meals and lodging.

Considering the two clauses above, the Court applied the principle that statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict.  That principle of harmonious construction applies to the construct ion of provisions within different statutes of the same legislature to create a very strong presumption that the legislature did not intend to contradict itself but intended that both should operate.

Clause 17(1aa) is confined by its express words to expenses arising from a s 93L assessment.  Clause 19(3A) deals with any case where a worker travels for his/her degree of impairment to be assessed by an approved medical specialist or panel.  Clause 19(3A) includes but is not limited to s 93L assessment.  Clause 19(3A) is therefore wider in its potential application than cl 17(1aa).

There is a principle of statutory interpretation that where there is a conflict between two sections of an act and where there is a general provision which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision in so far as it is inconsistent with the special provision, must be deemed not to apply.

Applying that principle, the Court was satisfied that the arbitrator was correct in concluding that the two provisions can in fact be read together.  Although cl 19(3A) expressly contemplates the payment of a worker’s travelling expenses where a worker travels in order to have their degree of impairment assessed by an approved medical specialist, there are a number of reasons for such an assessment.  Clause 19(3A) provides for travel, meal and lodging expenses for all attendances for the purposes of common law assessments (s93L).  In the latter scenario the position is governed by cl 17(1aa). The Court was not prepared to disregard the plain words of the clauses, as there is a longstanding principle of statutory interpretation that all words in legislation should (where possible) be given meaning and effect therefore, those exclusionary words do not apply only to expenses payable under cl 17 and declined to construe the Act so as to conclude that a worker is compensated for medical and other expenses under cl 17(1) whilst, notwithstanding cl17(1aa), paid the associated travel and other expenses under cl 19.

Therefore, the employer was not obliged to pay Mr Briggs’ vehicle running expenses, together with meals and accommodation in the sum of $1,996.08.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Late application for Criminal Injuries Compensation allowed by Appeal Court 960 577 aelegal

Late application for Criminal Injuries Compensation allowed by Appeal Court

(CME [2018] WADC 69)

On 4 April 2017 the appellant, CME, applied pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for criminal injuries compensation in respect of injuries she sustained in an alleged assault occurring on 4 July 2015.

CME alleges that she was walking across an oval in Albany carrying a pie and a bag of chips when she was approached by two females asking for money. After a brief discussion the assailants knocked the pie out of her hand, punched her in the stomach, grabbed her ponytail, pulled her head up and then punched her on the left side of the face. As a result of this incident she suffered pain and injury.

The matter was not reported to the police until 27 April 2016 (almost one year later). No person was charged as a result of the incident. On 28 June 2017 the assessor for criminal injuries compensation provisionally determined the application and finally determined on 31 July 2017 to refuse the application on the basis that the delay in reporting the matter to the police was not reasonable. CME appealed from that decision. The appeal was lodged within time.

Was CME the victim of a criminal offence?

After deliberation the Court stated that it was “… satisfied on the balance of probabilities that CME suffered bodily harm…defined by law to be a bodily injury of such a nature as to interfere with health or comfort…. [and was] satisfied that the injury she sustained, essentially a fracture of the orbital floor, interfered with her health or comfort”.

CME has had other numerous claims for criminal injuries compensation and has only claimed where she was able to identify the offender, unlike this case. The Court stated that “…Her subjective belief that if she could not identify the offender there was effectively nothing to tell the police and therefore no point in making a report is a belief I find that she genuinely held”.

Medical evidence

The medical evidence established that CME suffered a left orbital floor fracture which caused numbness to the left side of her face.

Economic loss

A clinical psychologist who saw CME reported that CME’s “current psychological, emotional, cognitive and behavioural symptoms are likely to impede concentration and reduce her general performance” and indicated that in the short-term CME had reduced capacity to work but in the long-term her capacity would depend on her response to treatment. No award was made for this head of damage.

The court, after taken the above on board allowed the appeal and awarded CME the following:

  • General damages – $30,000.00;
  • Report expenses $3,300.00;
  • Future medical treatment $5,192.50

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Victim of a violent assault prevails with further compensation on appeal. 960 577 aelegal

Victim of a violent assault prevails with further compensation on appeal.

ROBERTSON V HOPWOOD [2018] WADC 66

It is uncontentious that on the day of the incident, the respondent (Mr Hopwood) was at the Inglewood Hotel watching a rugby match from about 6.00 pm and that the appellant (Mr Robertson) was also there.

It is also uncontentious that the Mr Hopwood had known the offender for approximately 10 years, as a work colleague and once a friend, but that the two had fallen out before the incident over some work contracts. Their work environment was quite toxic.

The CCTV footage of the incident shows the Mr Hopwood and his friend on their way out of the hotel. Mr Hopwood’s attention was drawn by a call from a woman, Sarah, who he knew and who was Mr Robertson’s sister. Mr Hopwood stopped to talk to Sarah. He spoke to her for less than a minute. There is nothing in the CCTV footage to suggest that the conversation was anything other than amicable and short.

As Mr Hopwood then turned to leave, he saw Mr Robertson and some brief words were exchanged.

Mr Hopwood and a friend then exchanged some words and Mr Robertson’s friend grabbed Mr Hopwood by the arm.

Mr Hopwood’s written statement states that he remembers exchanging words with Mr Robertson and his friends but did not remember what those words were. His next recollection was being in an ambulance and later at Sir Charles Gairdner Hospital.

Mr Hopwood in this matter had brought a cross-appeal applying for the Criminal Injuries Compensation assessor’s decision to be increased on the basis that the allowance “for general damages; past and future loss of income as well as past and future treatment expenses were too low”. Mr Hopwood sought to be paid the maximum award of compensation of $75,000.

The Criminal Injuries Compensation Assessor, by a compensation award dated 6 November 2015, awarded Mr Hopwood the sum of $49,041.11 compensation (the award) for the injuries and losses that the assessor was satisfied he had suffered as a consequence of the incident.

The Criminal Injuries Compensation assessor was satisfied that Mr Hopwood had been injured in the commission of a proven offence and the application was there for properly brought pursuant to s 12 of the Criminal Injuries Compensation Act. In the course of her decision, the Criminal Injuries Compensation assessor also considered whether any award should be reduced because, at one stage during the incident, Mr Hopwood had head-butted Mr Robinson.

There are specific heads of loss defined in s 6 of the Criminal Injuries Compensation Act to include:

  • expenses actually and reasonably incurred by or on behalf of the victim –
    • that arise directly from; or
    • that arise in obtaining any report from a health professional or a counsellor in relation to, the injury suffered by the victim; or
  • expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or
  • loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim;
  • any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.

On reflection the judge stated “Accordingly, I am prepared to award the respondent (Mr Hopwood) compensation in the sum of $75,000 being the statutory maximum and which is made up of the sum of $40,000 in general damages and so much of the losses under 6(2)(a) to take it up to the statutory maximum”.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Duty of care after explosion 960 577 aelegal

Duty of care after explosion

BAKER -v- LOCK [2018] WADC 48

The plaintiff, Mr Jesse Baker (Mr Baker) visited Mr Robert Lock (Robert) at his residence (premises) to discuss and pay for repairs that Robert had agreed to make to Mr Baker’s motorcycle. Whilst the two men and another man, were seated in a rear shed at the premises, Robert lit a cigarette lighter proximate to an open paint thinners tin or drum causing an immediate explosion and consequent fire which consumed the shed. All three men suffered burns.

Mr Baker sued William and Lynette Lock, parents to Robert (Mr and Mrs Lock), as owners of the premises by alleging that they owed him a duty of care, breached that duty and caused his injuries pursuant to the Occupiers Liability Act 1985 (OLA).

The issues for determination were as follows:

  1. Was Mr Baker injured in the explosion and fire at the premises? 

The Court concluded that “… I [t was] am satisfied that Mr Baker suffered serious burns as a direct consequence of the explosion and fire caused by Robert lighting a cigarette lighter which ignited vapour from an open thinners drum in the rear shed of the premises… 

  1. Did Mr and Mrs Lock occupy the premises pursuant to the OLA or were they landlords at the relevant time? 

The Court found that it was “… satisfied on all of the evidence that Mr and Mrs Lock left Perth and agreed with their son Robert and daughter Ms Lock that they would stay in the premises…”, thus not being occupiers but landlords to Robert.

  1. If Mr and Mrs Lock were occupiers or landlords, what, if any, was the statutory duty of care they owed to Mr Baker?

The Court indicated that it found the “… arrangement between Mr and Mrs Lock and Robert…was a periodic verbal tenancy agreement where Mr and Mrs Lock were the landlords and Robert and Ms Lock the tenants…”, hence Robert had a duty of care as occupier of the premises to all lawful entrants. 

  1. Was there any other common law duty of care they owed to Mr Baker? 

The Court concluded that “Although Mr and Mrs Lock owed Mr Baker a common law duty of care as landlords due to an invitee to the premises, their duty did not extend to the danger created by Robert.  Mr and Mrs Lock owed Mr Baker no other common law duty …

Although Mr and Mrs Lock owed a duty of care to Mr Baker pursuant to the provisions of the OLA and also at common law, those duties had no application in this case.” Because even if Mr Baker was able to establish duty and breach as pleaded, none of those breaches caused his injuries.  It was not the storage of flammable substances in a shed to which visitors had access that caused the explosion. Rather the explosion was caused by Robert introducing an ignition source proximate to an open thinners drum. It follows that Mr Baker’s claim against Mr and Mrs Lock was dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

After Dark Stroll Turns Deadly 960 577 aelegal

After Dark Stroll Turns Deadly

ROWE -v- ROSE [2018] WADC 38

At approximately 10.00 pm on 20 May 2013, the Defendant drove her motor vehicle from her home and turned into Preston Point Road, Bicton, driving in an easterly direction. Her motor vehicle struck Mr Prime on the roadway as he was walking his dog. There were no eyewitnesses.

Mr Prime died one week after he was struck by the Defendant’s motor vehicle.

It is alleged that Mr Prime’s death was caused by the negligent driving of the Defendant. The defence denies that any negligence on the part of the defendant caused his death and alleges that Mr Prime’s own negligence contributed to his death as he should have been keeping a proper lookout.

At the time of the motor vehicle accident, Mr Prime was wearing dark clothing, including a hoodie. He had consumed two or three Corona beers that evening. He more probably than not had another beer in his hand at the time. Subsequent tests indicated he had an ethanol reading of 0.12% and a blood alcohol content of 0.1%.

The Defendant was the only witness able to give any evidence of the motor vehicle accident. In cross-examination, she maintained that her car’s bonnet would have blocked her view up the road. She disagreed with the proposition that the roadway was level or very close to level.

After multiple expert analyses were tendered in evidence, the Court concluded that “It is reasonable, in all the circumstances, and in the absence of other evidence or explanation….that the defendant’s failure to perceive and detect Mr Prime as a pedestrian sooner than she did and to take steps to avoid her motor vehicle crashing into him, caused or materially contributed to that crash and his death”.

As the sole provider and carer for Mr Prime’s two children, Mr Prime’s partner and the children were awarded compensation pursuant to the Fatal Injuries Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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