• Suite 23, Maylands Commercial Centre, 168 Guildford Road, Maylands WA 6051 | Lots of Free Parking | CALL NOW: 9371 5060

Personal Injury Compensation

Christos v Curtin University – A long standing dispute

The primary proceedings concerned a claim by the appellant (Dr Christos) against his former employer, Curtin University, (Curtin) for damages for psychiatric injury allegedly caused by Curtin’s breach of contract, negligence and breach of statutory duty.

In general terms, Dr Christos, whose employment was terminated by Curtin with effect from 28 October 2004, alleged that Curtin was in breach of contract and was negligent in the period 20 February 2003 to 28 October 2004:

(a)          for failing to assess and resolve, in accordance with Curtin’s grievance and dispute resolution policies and procedures, several grievance complaints made by Dr Christos against Curtin and members of its staff over a period commencing on 1 May 2002; and

(b)          in that Curtin and various staff members bullied, harassed and victimised him.

It was not in dispute that Curtin owed Dr Christos a duty of care. Nor was it in dispute that Dr Christos was psychiatrically disabled. The central issue in dispute was whether Curtin breached its duty of care and, if so, whether the breach was ‘a‘ cause of Dr Christos’s ongoing psychiatric illness.

The primary judge observed that a number of the events pleaded by Dr Christos had occurred prior to six years before the issue of the writ commencing the proceedings before him, namely on 20 February 2009, and that to the extent that Dr Christos sought to rely on breaches of contract or tortious damage which occurred prior to 20 February 2003, the claims were statute barred. However, his Honour recognised that the grievance proceedings that were set in train prior to 20 February 2003 were still of some significance because Dr Christos alleged that Curtin breached its obligations in failing to resolve the early grievance complaints.

In his findings, the primary judge stated that:

I find that Curtin through its staff did not bully, victimise or harass the plaintiff.  Whether there is a breach of a duty of care must depend on a finding that Curtin’s responses to the plaintiff were appropriate and, in the circumstances, reasonable.  In these circumstances, an inference cannot be drawn that the risk of psychiatric injury was foreseeable.

Dr Christos appealed and his senior counsel indicated that the appeal did not involve any challenge to the judge’s findings as to the absence of bullying or victimisation.  Senior counsel said, in effect, that the appeal only concerned Dr Christos’s case in relation to the failure to assess and resolve Dr Christos’s grievances in the period 20 February 2003 to 28 October 2014 and summarised the substance of his case as follows:

  • In the relevant period from 20 February 2003 to 28 October 2004, a reasonable person in Curtin’s position would have foreseen a risk which was not far‑fetched or fanciful, that its conduct in dealing with Dr Christos’s grievances (lodged in 2002 and subsequently) would cause or aggravate a psychiatric injury in Dr Christos;
  • In order to avoid that risk of psychiatric injury, a reasonable person in Curtin’s position would, in the relevant period, have progressed and sought to resolve Dr Christos’s grievances in accordance with the grievance resolution policy;
  • In the relevant period, Curtin failed to progress and seek to resolve Dr Christos’s grievances in accordance with the grievance resolution policy;
  • That failure, in the relevant period, to progress and seek to resolve Dr Christos’s grievances materially contributed to his adjustment disorder, which is a recognised psychiatric injury.

None of the above grounds were established by Dr Christos and the appeal was subsequently dismissed for the following reasons:

  • It was open to the primary judge to conclude that even if Curtin had taken adequate steps to resolve Dr Christos’s grievances in the period 20 February 2003 to 28 October 2004, that would not in itself have made any material difference to his psychiatric condition, because only a resolution satisfactory to him would have made any difference to his psychiatric state at the time.  In light of that finding, there was no suggestion that had the grievance process been completed within the relevant period, Dr Christos’s grievances would have been resolved to his satisfaction; and
  • The evidence of Dr Manners to which Dr Christos referred was in general terms, and was not directed to the specific question of whether delay in resolution of the grievances from 20 February 2003 to 28 October 2004 materially contributed to Dr Christos’s psychiatric injury. That evidence does not rise to the point where this court could say that the judge erred in concluding that the absence of resolution of grievances in the period 20 February 2003 to 28 October 2004 in fact made a material contribution to the nature or duration of, or materially exacerbated, Dr Christos’s adjustment disorder, or was a cause of his subsequent depressive disorder.

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.

No Damages Award Due to NO Negligence Finding – A Wild Ride

In the matter of Lightfoot v Rockingham Wild Encounters Pty Ltd [2017] WADC 62, the Claimant and her friend were passengers on a boat called “100% Wild”. This vessel was operated by the defendant, Rockingham Wild Encounters P/L (RWE) for the purpose of taking paying passengers on dolphin watching cruises. The skipper of the vessel was an experienced master. Prior to boarding the vessel, Claimant and her friend attended at the RWE’s office to collect and pay for their tickets. She was asked to sign a waiver of liability in relation to the trip at that time and did so.

On the way, out of Cockburn Sound during the tour, the skipper navigated the boat in a westerly direction through a gap in a reef situated between John Point and John Ledge. The vessel encountered some waves, then a larger wave, which caused the claimant to rise out of her seat and come down hard, onto the same seat, striking her back against its edge. As a result of the impact she received a serious spinal injury, which required her to be transferred to hospital, ultimately undergoing surgery two days later. She has recovered from the surgery, but was left with disabilities and restrictions and faces further surgery.

The claimant issued a writ against RWE, claiming damages for personal injury. The claimant pleaded that RWE had breached its duty to take reasonable care of her to ensure that she was not exposed to the risk of injury during the tour on 100% Wild.

At trial, the Claimant relied only upon RWE, its servants or agents being negligent in that the master navigated the boat into an area where it was foreseeable that it could encounter large swell/waves which could endanger the safety of passengers seated near the front of the boat including the Claimant.

The judge stated the briefing given before the tour to the Claimant and other passengers was not sufficient to negative the duty of care owed by RWE to her and went to find that the master was not negligent as the probability of a sudden large wave appearing in those waters was remote.

The judge then went on to analyse the waiver and considered whether it indemnified RWE against the Claimant’s claim and concluded that although the master had not been reckless, the drafting of the indemnity was not limited to personal injury as it had also included property damage and was therefore ineffective.

It’s important to note that had RWE been negligent, the waiver would not have applied and RWE would have been liable to the Claimant in damages.

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.

Injured Patron Sues Hotel And His Damages Are Reduced by One Third on Appeal

In June 2009, a patron tripped over the corner of a raised timber platform in the lobby area of a local hotel in New South Wales. As a result, he suffered injuries to his neck, right shoulder and back. That relatively dark timber platform was a permanent structure in the hotel lobby — A strip of illuminated LED lights under that bottom edge cast light onto the white marble floor tiles of the lobby.

The primary judge found that the patron did not see the raised timber platform before he tripped and fell and that his ability to do so was affected by “intense glare” from a window or windows to the south of the bar area, which was the direction in which the patron was walking with his sister when he tripped and fell.

The primary Judge considered the patron to be “impressive” and “generally reliable” and found in his favour.

The hotel appealed the decision on the grounds that the primary judge should have held the reason the patron did not see the raised platform was because he was not looking where he was going. In support of its position the hotel stated that the primary judge erred in not accepting its evidence including that of an expert who argued that the patron was not blinded by glare as he submitted.

The appeal began in December 2016.

The duty of an occupier (in this case the hotel) to an entrant is governed by the general principles of the law of negligence, and is measured by what a reasonable person would in the circumstances do by in way of response to a risk of injury if the relevant risk of injury was foreseeable.

In assessing what reasonableness requires in response to a risk of harm, the reasonable person in the occupier’s position is entitled to take into account “with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety”.

Did the hotel breach its duty of care to the patron?

The Appeal Judge stated that he considered the risk of tripping on the platform was obvious within the meaning of the relevant New South Wales legislation (which is similar to the current Western Australian legislation).

The presence and characteristics of the platform would have been obvious to a reasonable person in the position of the patron and once these facts were appreciated the risk of tripping over it was self-evident.

The hazard posed by the platform in this case was of a lesser order and more discernible. The Judge considered the degree of the patron’s shortfall in taking reasonable care for his own safety to be important and therefore reduced the patron’s damages awarded by the primary judge by one third on account of his contributory negligence.

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.

Plaintiff Awarded Loss Of Earning Capacity Inclusive Of Dividends

In the District Court case of Dunmall v Welsh [No 9] [2017] WADC 19 a Plaintiff was successful in being awarded damages for loss of earning capacity including of dividends due to him.

In 2004 the Plaintiff and his wife were at the home of friends when the Plaintiff proceeded to exit onto an upstairs balcony with two others people, when it collapsed causing the Plaintiff to fall three meters to the ground. Although the balcony had capacity to support fifty or more people it collapsed under the weight of three persons. As a result of the fall, the Plaintiff suffered a serious and life-changing injury to his left ankle.  He was 63 years old at the time of the accident. Prior to the accident, he had been a General Manager of a large and successful ceiling fixing business with a good income and no plans to retire.

He commenced proceedings against the builder of the balcony as well as the shire who had approved the relevant building plans. The matter proceeded to trial on the issue of liability only.  At the trial, in 2014, the Judge gave judgment and indicated that the builder and the shire were liable to compensate the Plaintiff for his proven injuries and determined the apportionment between the two to be 65% and 35%, respectively.

The matter later proceeded to the District Court for the determination of the quantum.  Having resolved and agreed on all other heads of damages the only issue to be determined at the trial was the sum to be awarded by way of the claim for economic loss as a result of his loss of earning capacity.

The general principles relating to a loss of earning capacity is that a Plaintiff is not entitled to recover his damages unless he establishes, firstly, that his earning capacity was diminished by the negligence–caused injuries and secondly, that the diminution of earning capacity was productive of such economic loss. In other words, what should be compensated is the loss or diminishment of earning capacity, not loss of earnings. Whether there is a link between the negligence–caused injury and the diminution of that earning capacity is a question of fact to be determined on the evidence at hand. If the effects of a Plaintiff’s injuries were on a common-sense approach, a material cause of his decision to retire early, then the financial loss has resulted from the loss of earning capacity and is connected to the Defendant’s negligence. If however the Plaintiff has resigned, by reason of the loss of earning capacity but he is fit to do the work, then the onus lies on him to, as part of his case to prove his earning capacity. Similarly, where an issue arises as to whether a Plaintiff could have obtained employment within his retained capacity, it is for the Plaintiff to prove that such employment is beyond his capacity.

After an analysis of the evidence provided, the Court was satisfied that the Plaintiff had no plans to retire early and, but for the accident, was likely to have worked past 65 years of age provided he enjoyed sufficient basic health to do so, and provided his employer was content for him to do so. The Court then went on to determine the Plaintiff’s likely retirement age and after taking into account his general state of health at the age of 74, which was his age at the time he testified at trial, the Court was satisfied on a balance of probabilities that he would have worked until 67 years of age, which is the extent of his claim.

In that regard the Court also went on to find that the Plaintiff’s capacity to work was almost utterly lost.  That loss was however not immediately productive of economic loss because he was kept at full pay with bonuses until approximately 2005. The Court found that the Plaintiff retained no capacity to return to his pre-accident employment on a full-time basis and that he could no longer work as a manager.

The Defendant argued that the Plaintiff failed to mitigate his loss by failing to apply for alternative employment, however the Court accepted the Plaintiff’s evidence that there was no point in applying for another job because he was not able to do the work anymore.  The Court found that the Plaintiff did not fail to mitigate his loss.

With regards to the assessment of loss of earnings, the relevant Western Australian Legislation provides that a Court must disregard earnings lost to the extent where it accrued at a rate of more than three times the average weekly earnings at the time of the award.

With regards to the dividends, ordinarily they would not amount to “earnings”, although they are income. However, in this case, although no income tax was payable on the dividends, the Court considered that the dividends which were received through the Plaintiff’s efforts at work and by virtue of his actions as General Manager amounted in substance (if not form) to something in the nature of a reward for past, present or future services as an employee.  In that regard the Court considered that the dividend amounted to “earnings” within  the meaning of the relevant Legislation.

After applying a 5% discount for contingencies and vicissitudes of life and taking into account that the Plaintiff was at reasonable health at the age of 74, it calculated the Plaintiff’s loss at $324 358.00 for loss of earning capacity. The Court further allowed the appropriate discount of 15% for taxes, administrative fees and contingencies, but added past and future superannuation, salary sacrifice bonuses and dividends to the loss of earning capacity above, culminating in the sum $505 327.00.

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.

Slip And Fall Legislation –strong V Woolworths Limitited [2012] HCA 5

In this appeal to the High Court of Australia, the Appeallant, Kathryne Strong sustained a serious spinal injury after a slip and fall at a Woolworths Centre.  At the time of the incident, Kathryne was on crutches and slipped and fell when she lost control of a crutch which she had placed on a greasy chip.

The basis of the Appeal was centred around the common difficulty faced in all slip and fall accidents, namely the establishment of a causal connection between an adequate cleaning system being in place and the time from when the slippery object was deposited to the actual injury being sustained.

Despite Woolworth’s having a rotational fifteen minute cleaning schedule in place, it was held that it had materially contributed to Kathryne’s harm and was therefore sufficiently negligent to establish factual causation. This was based on the fact that it could not be found that the chip was on the ground for long enough for it not to have been timeously detected and removed by a reasonable cleaning system.

At A&E Legal, we are specialists in Personal Injury Compensation claims.  If you intend to, or require expert guidance to ensure that you receive the maximum compensation due to you, please contact us for a no obligation free consultation in order for us to assess your claim and advise you accordingly