Australia: The ACT Supreme Court Blitz: a selection of cases by Sidis AJ

Insurance Update
Last Updated: 8 December 2012
Article by Ken Powell and Dan Crowe

This collection of case summaries follows on from the Insurance Flashlight Blog entry, Canberra's Courtroom Blitz. It provides a snapshot for insurers of selected judgments by Sidis AJ handed down in the ACT Supreme Court during the 2012 Civil Blitz.

PERSONAL INJURIES (ASSAULT)

In Hopps v Domin8 Holdings Pty Limited and Meche Staffing Services Pty Ltd [2012] ACTSC 165, the plaintiff sued the defendants for injuries arising from her alleged assault by a security guard at the first defendant's nightclub in 2009. After the plaintiff discontinued proceedings against the security guard, the remaining defendants were the nightclub owner and employer of the security guard.

Sidis AJ entered default judgment against the defendants in this matter due to their curious continued failure to attend court.

Her Honour awarded the plaintiff $99,870.92 in damages and $32,171.22 in costs.

The plaintiff claimed a range of physical injuries (including a fractured wrist, which required surgery) and psychological shock exacerbating a pre-existing anxiety condition. In the absence of any evidence from the defendants whatsoever, Sidis AJ was largely amenable to the plaintiff's claim and assessment, although ordered lesser amounts under some heads of damages.

What does seem highly unusual about this case was that the defendants do not appear to have been involved in the proceeding at any stage and certainly failed to even file a defence. It is not apparent to us whether the defendants might have had any reasonable basis for defending the plaintiff's claim - although one would at least ordinarily dispute the quantum of the damages claimed by the plaintiff.

PERSONAL INJURY (CYCLIST COLLISION WITH BUS)

In Jaajaa v Australian Capital Territory [2012] ACTSC 130, the plaintiff sued the defendant for injuries allegedly arising from a collision in 2009. The plaintiff was cycling when he collided with a school bus operated by the defendant. The defendant denied negligence, alleged contributory negligence by the plaintiff and challenged the plaintiff's claims of injury.

Sidis AJ found in favour of the defendant on the basis of no breach of duty of care having been proved and awarded costs as agreed or assessed. Her Honour went on to rule that had a breach of duty of care been established, the claim would have failed regardless on causation, and in any event assessed the plaintiff's contributory negligence at 60% and took a very conservative view of the plaintiff's alleged injuries.

The collision occurred when the bus turned left some distance ahead of the plaintiff. The plaintiff (who was listening to a portable music player at the time) collided with the left hand side of the rear half of the bus as it turned the corner.

Sidis AJ found that the driver was not negligent in failing to check his rear-view mirror for the plaintiff in the brief period between the plaintiff catching up to the bus and colliding with it. Her Honour ruled that the driver had taken all reasonable care in the circumstances, including earlier checking for the plaintiff in his mirrors, slowing, and indicating to turn - all giving the plaintiff ample opportunity to stop to avoid collision. Her Honour took into account the fact that children were on board the bus and it was on a busy road, so for the plaintiff to have taken any other action was unreasonable.

Sidis AJ also found the plaintiff's evidence to be unreliable due to the serious state of his mental health. Despite making no findings as to liability on the defendant's behalf, Her Honour went on to assess that the plaintiff's alleged physical injuries were relatively minor, and his alleged psychiatric injuries were not caused by the accident, but had been aggravated by it.

This case demonstrates (as if we needed a reminder) the importance of the credibility of witnesses (particularly so far as mental health issues are concerned) and when a driver's actions will be sufficiently reasonable so as to avoid any findings of negligence against him or her.

PERSONAL INJURY (MOTOR VEHICLE ACCIDENT)

In Johnson v Mireku [2012] ACTSC 129, the plaintiff sued the defendant for injuries arising from a motor vehicle accident in 2008. She was struck at low speed while walking across a pedestrian crossing with her infant son. The plaintiff alleged that, as at the date of trial, she was particularly troubled by ongoing pain in her left knee. An anxiety issue had been substantially resolved by the time of the proceedings.

The defendant admitted liability but sought to reduce any award of damages by raising doubts about the nature of the injuries and the plaintiff's credibility.

In simple terms, Sidis AJ dismissed both of the defendant's arguments and awarded the plaintiff $111,816 plus costs as agreed or assessed.

As to the nature of the injuries, Her Honour was critical of the defendant's medical evidence, which wrongly attributed the plaintiff's ongoing injuries to a prior history of knee trouble in contrast to several other expert reports and the plaintiff's account (which Her Honour accepted) of having suffered no ongoing pain prior to the accident. There was also a question as to whether the expert had even formally examined the plaintiff on one occasion.

Sidis AJ found the defendant's medical evidence "not helpful" and ruled that the defendant's expert had formed an adverse opinion on the plaintiff's credibility with no basis - something which was outside his role as an expert medical practitioner.

On the plaintiff's credibility, Her Honour found the plaintiff to be a witness doing her best to be open and honest with the court and that any minor inconsistencies in her testimony were reasonably explicable.

This case serves as a reminder to ensure expert reports tendered in support of a case are thorough, accurate and well-reasoned - and that they are not simply a "hollow echo" of what the commissioning party wants to hear. It's also important to note that medical experts should refrain from impugning a plaintiff's credibility unless they have a strong basis on which to do so.

PERSONAL INJURY (MOTOR VEHICLE ACCIDENT)

In Kaufman v Kozac [2012] ACTSC 78, the plaintiff sued the defendant for a range of injuries arising from a motor vehicle accident in 2007, in which her car was rear-ended by the defendant's in a slip lane. The defendant admitted liability but alleged contributory negligence by the plaintiff.

Sidis AJ awarded $40,600 to the plaintiff plus costs as agreed or assessed. Her Honour dismissed the defendant's argument of contributory negligence, but took into account the plaintiff's extensive preaccident medical history in assessing damages.

Additionally, the defendant attacked the plaintiff's credibility, arguing she used her experience as a personal injury insurance claims officer to "manufacture or overstate the extent to which her current condition was the result of the accident".

Whilst Her Honour did not squarely address this issue, she noted it as a complicating factor in assessing damages, and ultimately ruled that "[t]here was no doubt that the plaintiff's claim bore the hallmarks of deceit and exaggeration. She pursued her claim that her back pain commenced from and was the result of the accident in the face of clear medical evidence to the contrary."

Sidis AJ conducted a very thorough analysis of the medical evidence (including the plaintiff's preaccident history) in order to expose these holes in the plaintiff's claim. This case highlights the importance of the forensic approach in defending these types of claims.

MEDICAL NEGLIGENCE (COMPLEX GYNAECOLOGICAL PROCEDURE)

In Dixon v Foote & Calvary Health Care ACT Ltd [2012] ACTSC 101 (see also case No 2 and No 3 which addressed damages and costs), the plaintiff (a patient) sued the first defendant (a doctor) for injuries arising from medical negligence in 2004. The plaintiff alleged the first defendant was negligent in recommending and performing gynaecological procedures and in the defendant's post-operative care of the plaintiff. Proceedings against the second defendant (the hospital) were ultimately not pursued.

Sidis AJ awarded the plaintiff $284,427.16 in damages plus costs (being a combination of "standard" party/party costs and indemnity costs).

Her Honour found the first defendant to be negligent on all alleged counts, as well as parts of his evidence to be unreliable. Her Honour also ruled that, following the surgery, the first defendant lied to the plaintiff about a pre-existing condition in an attempt to dissuade her from bringing a claim in negligence.

Prior to the surgery, the first defendant advised the plaintiff in relation to the breakdown of a mesh sling that she had in place to support a prolapsed uterus. In addition to recommending the mesh be rectified, he advised that the plaintiff undergo surgery for an abdominal hysterectomy and sacral colpopexy due to the diagnosis of probable further prolapse.

During the surgery, the plaintiff suffered damage to her ureter and also developed a fistula. This resulted in urine leakage from her bladder and the plaintiff required further corrective surgery.

In the days following the surgery, the plaintiff presented with various problems, which the first defendant viewed as not being out of the ordinary and therefore did not immediately investigate them.

Sidis AJ found that the first defendant failed to exercise reasonable care and skill, and was in breach of his duty of care to the plaintiff, in:

  • Advising the plaintiff to proceed with theabdominal hysterectomy and sacral colpopexy, because this advice was premised on adeficient diagnosis of probable prolapse
  • Performing the surgery, because he failed to follow standard medical practice and caused foreseeable damage to the plaintiff
  • His post-operative care obligations, because he failed to recognise that investigations were necessary to confirm or deny his diagnosis in circumstances where he was confused and where the plaintiff's condition was deteriorating.

Her Honour was satisfied that the first defendant's negligence caused damage to the plaintiff.

The first defendant in this case is a prominent medical practitioner. This case illustrates that - particularly in the case of more complex medical procedures - it is vital for surgeons to be very cautious at all stages of surgery, including leading up to and following the operation.

OCCUPIER'S LIABILITY (FALL FROM UNGUARDED RETAINING WALL)

In Stone v The Owners Units Plan 1214, Nectaria Nominees Pty Ltd, Debra Nominees Pty Ltd and Hawkesbury Nominees Pty Ltd [2012] ACTSC 164, the plaintiff sued the defendants in respect of serious injuries allegedly arising from a fall from an unguarded retaining wall. The plaintiff alleged the defendants were negligent with respect to their occupier's liability by failing to take steps to guard against the risk that the wall presented. The defendants denied liability on the basis of there having been no prior accident history, the fact they engaged independent consultants to design and build the wall and were not vicariously liable for their negligence, and the alleged unreasonable conduct by the plaintiff.

Sidis AJ found it was unlikely the plaintiff fell from the wall and his claim therefore ultimately failed.

However, Her Honour went on to find that the defendants were nevertheless negligent in failing to take steps to guard against the "significant and foreseeable risk" to persons presented by the wall and the 3.5m difference in levels between the properties.

Importantly, Her Honour held that the defendants could not avoid liability by relying on principles relating to: the absence of prior history of accidents; the engagement of independent consultants in designing and building the walls; or the unreasonable conduct of plaintiff.

Her Honour also found contributory negligence of 50% on the plaintiff's behalf. In respect of the independent consultant issue, Her Honour distinguished this case from Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19. In Sweeney, it was clearly established that the independent contractor was negligent in performing the task he was contractually obliged to do.

In this case, Her Honour found there was little evidence at all about the contractors, let alone that they were contractually obliged to identify and manage all risks associated with the development (and were negligent in failing to do so). On the evidence presented, the consultants were hired to only provide an opinion on whether or not the development met the relevant legal/regulatory requirements.

Although Sidis AJ ultimately ruled in favour of the defendants, this case highlights the importance to occupiers of conducting adequate risk management, and not simply relying on a clean track record and professional design and construction of their facilities as a way of completely avoiding risk and liability.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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