Rounding the turn to the right into the home straight on the 1600 m journey in race 7, Darcey – a 4yr-old mare – was boxed in on the rails with two horses in front and two on her outside.
In an attempt to challenge the leaders, jockey Glenn Lynch led Darcey out from the rails to buffet the mare on his left under the control of rider Greg Ryan.
Against the pressure exerted by Lynch’s mount, Ryan kept his mare on her line for 30 m or so and nosed ahead of Darcey as the pair came out of the turn.
Lynch then aggressively pushed further to his left increasing the pressure against Ryan’s mount to such an extent that its hindquarters abruptly shifted out and its legs became entangled with those of the gelding following behind.
That beast – Blue Onyx – crashed onto the Tamworth track spilling its jockey Hari Singh to the grass. Singh sustained serious injuries.
That was in August 2012.
In the lawsuit that came before the NSW Supreme Court in May 2019 it was revealed that Lynch had been charged by the Tamworth stewards and found guilty of breaching Australian Rules of Racing rule 137 (a) which prohibits “careless, improper, incompetent or foul riding”.
Lynch’s insurer nevertheless claimed liability immunity for the injury consequences of his negligent riding claiming that the fall was an “obvious risk” of a “dangerous recreational activity”.
Justice Des Fagan approved the parties’ agreement to the extent of Hari Singh’s damages at $5 million but concluded that Lynch’s careless riding was not negligent because it was no more than “a lapse of judgement under intense pressure in dynamic circumstances where the defendant and all of the jockeys around him were under a professional obligation to race to win”.
He also ruled that even if Lynch’s riding had been negligent, professional horse racing was a “dangerous recreational activity” and the fall that occurred was “the materialisation of an obvious risk” of the sport such that – by operation of NSW Civil Liability Act s 5L – the insurer was relieved of any obligation to part with its money.
His Honour followed the authority of recent NSW higher court decisions that held – for Civil Liability purposes – sporting activity was “recreational” even when conducted by professionals. He was not persuaded by a Tasmanian ruling on another jockey injury case that CLA liability immunity does not to extend to professional activities.
Leave was given to Mr Singh to re-argue on his appeal against the decided NSW authority as to whether the activities of professional sportspeople were when properly considered, “recreational”.
The court for his appeal was thus constituted by five judges rather than the customary three.
All five agreed that horse racing met the definition in CLA s 5K of a “sport” whether or not it was carried on for financial reward. They also agreed that it involved “a significant risk of physical harm” thus qualifying it under the statutory definition of “dangerous recreational activity”.
The appeal justices also concurred that Lynch’s conduct was reckless, not merely careless and – overturning the lower court decision – that Lynch had been negligent.
Where they differed was in the identification of the particular risk that Lynch’s insurer claimed to have been “obvious” to a reasonable person in Mr Singh’s position.
Justice Fagan had identified the that risk as that “of the appellant’s mount falling, bringing him to the ground and causing him injury.”
The majority – Justices Basten, Leeming and Payne – agreed, concluding that although Lynch’s riding was “unexpected, unreasonable and also unnecessary” the reckless and deliberate character of wrongdoer’s conduct did not alter its “obviousness”.
As straight forward as that proposition may be, their Honours’ further explanations perhaps “over-intellectualised the process”, a danger that Justice Basten had specifically warned against.
Consider for example the following contradictions: “Obviousness is to be considered prospectively,” but the exercise “involves a combination of foresight and hindsight”; The characterisation of the risk should be at a general level but “must not be so broad as to encompass all possible risks associated with the activity”.
The minority – Justices McCallum and Simpson – on the other hand thought the trial judge’s formulation of the “obvious” risk Singh was taken to have accepted to be “at an undue level of generality” because it failed to “have some regard to the mechanism by which the injury was caused”.
The range of “careless riding” included – they explained – common occurrences among the range of careless conduct a participant may reasonably anticipate therefore “obvious”. Other conduct within that broad description might be rare and therefore not “obvious”.
Considering the evidence – including that of jockey Greg Ryan – that Lynch’s aggressive unexpected breakout attempt involving as it did a “deliberate and persistent riding” to push another horse off its line, was rare and carried a significant risk of causing another horse to stumble.
In their view the risk of harm that eventuated was a risk that another rider would deliberately ride his horse so recklessly as to endanger other riders.
“The distinction is between careless riding (as outlawed by the Australian Rules of Racing) and deliberate act of causing a horse to collide with another and put it off its line of running (which is also outlawed). While the former is an obvious risk of the sport of horseracing, the latter in our opinion is not”.
They also observed that the Civil Liability Act should not be interpreted in a way that “effectively gives license to individuals to engage in conduct that involves risk of harm beyond that which may be reasonably expected to be anticipated as part of the pursuit activity in which the injured person voluntarily engages”.
The majority judges’ upholding of the insurer’s immunity contention means jockey Singh has been denied his claim.
It should be noted that the narrower definition of recreational activity in Queensland’s CLA – which is confined to activities engaged in for enjoyment, relaxation or leisure and contains no reference to “sport” – has lead to different conclusions in Queensland.
In Tasmania, where like NSW the analog includes within the relevant definition, a “sport” – whether or not it is “organised” – liability immunity has been held not to extend to professional activities that might otherwise be associated with recreation.
So while the dichotomy of appellate views makes this case a potential candidate for appeal to the High Court, the  significant differences between each State’s “dangerous recreational activity” enactments (and the absence of any such provision in Victoria) may be cause for that court to decline to entertain any appeal.
Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152 Basten JA, Leeming JA, Payne JA, McCallum JA and Simpson AJA, 23 July 2020  Read case
 

A negligence claim in NSW’s Supreme Court relating to an adverse outcome from surgery conducted in Toulouse and adjudicated under French law, has yielded big damages for a former Newcastle Knights player.
Lucas Miller – then 22-yrs-old – tore his right anterior cruciate ligament in a tackle that impacted the knee while playing in December 2010 for St Gaudens against Montpellier.
The injury was treated arthroscopically in January 2011 by French surgeon – Dr David Jones – by ligamentoplasty using a transtibial approach.
After completing a demanding five-week rehabilitation program involving reconditioning and physiotherapy for 8 hours each day and having been given the all-clear to play by Jones, he returned to Australia in July that year.
On return to training with a view to restarting his rugby league career, he noticed pain and discomfort in his right knee.
Sydney Orthopaedist Bruce Caldwell diagnosed instability and a tear to the medial meniscus. He performed an arthroscopy in March 2012 to remove all the earlier graft material and fixation devices to settle the infection he observed in the procedure.
In July he performed a revision ACL reconstruction. That surgery was successfully performed but could not remediate infection-related tissue nor did it obviate the severe pain Miller experienced in the knee.
Miller retired from the sport at the end of the 2014 season.
Believing the French surgeon had botched his reconstruction by placing the ACL graft too vertical – with femoral tunnels in an almost 12 o’clock position – and that he had left non-dissolving sutures in the graft that led to infection, he filed a lawsuit in Sydney in April 2015.
Jones’s insurer applied in August 2017 to have the Sydney proceedings “stayed” to allow Miller to re-start his claim in France. Such course was appropriate it contended, because that’s where the surgery had occurred and French law applied to the claim.
The contest came before Justice Geoffrey Bellew who noted that while Jones was fluent in English, Miller was not in French. Most compelling though was that the plaintiff and all the witnesses he proposed call resided here in Australia. In those circumstances His Honour was not satisfied that NSW was “a clearly inappropriate forum” and refused the insurer’s application.
The court was well-equipped, he observed, in applying laws of other places and this could be accommodated by calling evidence on the relevant issues from an expert in French law.
Not to be outdone, the insurer later filed its own proceedings on the same facts in France and re-applied to the NSW Supreme Court in August 2019 to “stay” those proceedings so those in France could go ahead.
That application was likewise dismissed with Justice Bellew noting that the relevant discretionary factors leading to his earlier determination remained essentially the same.
The trial was conducted over five days in October 2019.
Miller relied on opinion from Brisbane orthopaedist Simon Journeaux to prove to the court that the 2011 surgery was sub-optimal and for his expert in the French law of civil liability and damages, French lawyer Benjamin Nataf.
Mr Nataf and Dr Jones’s expert on French personal injury law – Parisien attorney Sebastien van Teslaar – referred the court to Article L 1142 – 1 of the French Public Health Code that establishes liability on the part of medical professionals if they commit an error.
Broadly speaking, it was accepted that French liability law was much the same for this particular exercise, as the common law of torts.
Van Teslaar clarified that doctors also have contractual liability – an “obligation of means” – if fault is proven. “Just because the result was not the one expected doesn’t mean the doctor committed default,” he explained.
The vertical position in which Dr Jones performed the graft was, according to Dr Journeaux a “manifestly inadequate position for a reconstructive procedure involving the ACL”, one which would not produce the optimal strength and stability required to allow the patient to return to professional rugby league.
With Journeaux’s opinions accepted, the requisite “fault” under French law was found to have been made out.
Dr Journeaux was also of the view that the knee was likely infected “primarily from the index procedure” and the infection would probably have occurred even had the reconstruction been expertly performed.
He attributed as “an educated guess” that 50% of the residual knee damage resulted from the “poorly done reconstruction” and the other 50% was due to the infection.
French law as to damages was also explained by Mr van Teslaar as being remarkably similar to that of the common law world, albeit with different terminology and some codification of damages categories. Somewhat surprisingly, there is also in France the notion of “loss of chance”.
Several categories of French compensation make up what we call general damages. Firstly, for “temporary functional deficit” compensation of €600 – €900 per month is allowed. Next for “permanent functional deficit”, van Teslaar contended that someone in Mr Miller’s position could expect to receive between €60k and €90k, with a further payment for “pain and suffering”. Justice Bellew awarded €79k for the former and €7k for the latter.
Further compensation was allowable for for scarring of €1k – €3k and a “non-financial loss of amenity” payment for example being unable to carry on a hobby or other pursuit – depending on how intensely it was carried out pre-accident – of €2k – €6k could be expected.
Recovery of the value of voluntarily supplied services to and injured claimant is also recoverable but only at €15 to €18 per hour.
As to economic loss, Miller had sustained a serious a left knee injury in 2008 when playing as a junior for the Storm. The court accepted he transferred to St Gaudens to prove that it had recovered with a view to obtaining a Super League contract before returning to Australia to play in the NRL.
He would – according to Justice Bellew – likely have joined an NRL team and enjoyed a 7-year career earning about $125k per season had the surgery been competently performed. Thereafter he would have pursued a career in the mining industry earning at the same level.
The matter was stood over for the parties to agree damages based on His Honour’s rulings. Unfortunately there is no record at the time of writing of what total damages were arrived at.
Even taking into account the infection-related 50% reduction that must on Dr Journeaux’s evidence, be applied to the assessment, the total damages for the 32-yr-old (at time of trial) are likely to be in seven figures of euros.
Miller v Jones (No. 6) [2020] NSWSC 736 Bellew J, 17 June 2020 Read case
 

A recent ruling on some residual cost issues arising out of the 2015 Federal Court sovereignty claim over the Elizabeth and Middleton Reefs that lie in the Coral Sea 95 km north of Lord Howe Island coincides with a much larger international controversy the origins of which come from an identical place.
In March 1970, Alex Ure – a Sydney businessman – scaled the derelict hull of a shipwreck resting on Middleton Reef above the high tide line and claimed for himself and friend Michael Chan, the 60 km² coral cay, the slightly smaller Elizabeth Reef 45 km to the south and the waters in between.
He posted up a sign on the deck of the wrecked British freighter – the SS Runic that ran aground in 1961 – proclaiming the place as theirs and specifying an address for the pair in Pitt Street Sydney.
Until then, no one had lain claim to either atoll – they were omitted from the Coral Sea Territory that Australia proclaimed in 1969 presumably because there’s nothing to be seen except the carcasses of ships wrecked on the coral and sand bars exposed at low tide.
Sound familiar?
Australia did however purport to assert sovereignty over the submerged atolls in December 1987 and aggregated them into the Australian Coral Sea Territory in 1997. This was against the background of the United Nation’s Convention on the Law of the Sea (UNCLOS) coming into force in 1982.
The Federal Court ruling in February 2016 accepted the reefs had been in international waters in 1970. It invalidated Ure’s claim on the grounds that a single visit to the reefs in March 1970 and plans to utilise the resources there were insufficient to prove their “occupation” and because in its view, such territory could only be claimed by nation-states.
No point was taken by the Commonwealth that – because the reefs were under water and uninhabitable – they were unable to be ‘claimed’ at all and the judgement of appeal Justices Perram, Robertson and Moshinsky was absent discussion on the validity of Australia’s own claim to the reefs given their status as submerged oceanic outcrops.
The resurrection of this controversy is serendipitous given the Permanent Mission of the Commonwealth of Australia to the United Nations in New York last week notified the UN that Australia “rejects China’s claims to maritime zones generated by submerged features, or low tide elevations in a manner inconsistent with UNCLOS”.
“There is no legal basis for a maritime feature to generate maritime entitlements beyond those generated under UNCLOS by that feature in its
natural state,” Australia’s Note Verbale of 23 July states.
The absence of a legal basis for maritime features to generate legal entitlements beyond UNCLOS – for which Australia is now pointing the finger at China over its claims in the South China Sea – was no impediment to its inclusion of the Reefs into its economic maritime territory in 1997 and it was not raised at all in the 2016 Ure-Chan adjudication.
Double standards or a missed opportunity?
Ure v Commonwealth of Australia [2020] FCA 336 Yates J, 13 March 2020

A financial planner has lost his appeal against an order that he pay compensation to a motor accident victim for failing to warn her against over-spending her injury compensation funds.
Michelle Bankier was awarded almost $2 mil in 2002 from the spinal injuries she sustained as a 16-yr-old in a 1997 car accident in which her mother was driving.
She consulted Anthony Avery of Avery Financial Planning to provide financial advice concerning the $1.13 mil that was available for investment.
By June 2007 her portfolio had grown to $1.308 mil. By the end of 2008 – as a result of unsuitable investments and imprudent spending –  just $700k was left.
Most imprudent was a long-term money drain in the form of an international surfing photography fantasy which turned out a complete failure.
Avery advised her in October 2008 to close the business and abandon the premises she had leased even if she couldn’t find anyone to take over the lease.
But it was what he had failed to tell her before then that sparked the lawsuit against him after Michelle terminated his services in June 2010.
The Statement of Financial Advice prepared back in 2002 recorded “lifestyle goals” of “large gifts to her mother and brother” and “adequate tax-effective income to meet current and projected living expenses” estimated at $54k/yr indexed to inflation.
That and the career as a self-employed freelancer surfing photographer.
Justice Glen Martin concluded in May 2019 that Avery’s advice was “too low key” for this particular naïve client and that his absence of warning against – what to others might be obvious – extravagant travel to international surfing events, made him liable for her “loss”.
When the matter came before the Court of Appeal in November 2019, Avery emphasised again that the dissipation of her funds arose from Michelle’s own imprudence.
Justice Walter Sofronoff in delivering the lead judgement with which Justices Philip Morrison and Anthe Philippedes concurred, agreed that the planner’s advice had been inadequate and that he ought to have warned her against high spending, generous gifts and improvident investments.
“She wrongly believed that she had enough money to afford these expenditures,” he wrote in his 35-page judgement and it was Avery’s duty to temper her optimism which he failed to do.
The planner had also raised a defence under Civil Liability Act s15 contending that it did not owe a duty to warn about an “obvious risk” ie a risk that would have been obvious to a reasonable person in her position.
Although she must be taken to have known that the depletion of her capital would reduce or even eliminate her capacity to fund future needs, “what she did not understand was that her ongoing expenditure would have the same effect”.
Or put another way, she “lacked the experience and knowledge to understand the potential consequences of her actions”.
“It should be obvious that a professional adviser must approach an inexperienced client in a different way from a sophisticated client,” the appeal court President observed. “If a client lacks the necessary experience …. the scope of the duty to advise will be wider and indeed may be much wider”.
Justice Sofronoff also considered the planner’s calculation of Michelle’s prospective annual income at $58k to be “financial alchemy”. He noted that after fees her net income – using the planner’s own calculations – was only $34k and for other years about $45k.
Avery was successful in gaining a $36k reduction in the “gross-up” included in Justice Martin’s award. He had contended that no gross up – a component added to an award so that after payment of tax, the claimant is left with the desired sum net of tax. Justice Martin had allowed for both the tax the damages and the tax that would be attracted by the gross up sum itself. The second gross-up – $36k – was disallowed, leaving Michelle with $1.103 mil as her ultimate outcome.
HAP2 Pty Ltd v Bankier [2020] QCA 152 Sofronoff P, Morrison JA, Philippides JA, 21 July 2020

A recent ruling on some residual cost issues arising out of the 2015 Federal Court sovereignty claim over the Elizabeth and Middleton Reefs that lie in the Coral Sea 95 km north of Lord Howe Island coincides with a much larger international controversy the origins of which come from an identical place.
In March 1970, Alex Ure – a Sydney businessman – scaled the derelict hull of a shipwreck resting on Middleton Reef above the high tide line and claimed for himself and friend Michael Chan, the 60 km² coral cay, the slightly smaller Elizabeth Reef 45 km to the south and the waters in between.
He posted up a sign on the deck of the wrecked British freighter – the SS Runic that ran aground in 1961 – proclaiming the place as theirs and specifying an address for the pair in Pitt Street Sydney.
Until then, no one had lain claim to either atoll – they were omitted from the Coral Sea Territory that Australia proclaimed in 1969 presumably because there’s nothing to be seen except the carcasses of ships wrecked on the coral and sand bars exposed at low tide.
Sound familiar?
Australia did however purport to assert sovereignty over the submerged atolls in December 1987 and aggregated them into the Australian Coral Sea Territory in 1997. This was against the background of the United Nation’s Convention on the Law of the Sea (UNCLOS) coming into force in 1982.
The Federal Court ruling in February 2016 accepted the reefs had been in international waters in 1970. It invalidated Ure’s claim on the grounds that a single visit to the reefs in March 1970 and plans to utilise the resources there were insufficient to prove their “occupation” and such territory could only be claimed by nation-states.
No point was taken by the Commonwealth that – because the reefs were under water and uninhabitable – they were unable to be ‘claimed’ at all and the judgement of appeal Justices Perram, Robertson and Moshinsky was absent discussion on the validity of Australia’s own claim to the reefs given their status as submerged oceanic outcrops.
The resurrection of this controversy is serendipitous given the Permanent Mission of the Commonwealth of Australia to the United Nations in New York last week notified the UN that Australia “rejects China’s claims to maritime zones generated by submerged features, or low tide elevations in a manner inconsistent with UNCLOS”.
“There is no legal basis for a maritime feature to generate maritime entitlements beyond those generated under UNCLOS by that feature in its
natural state,” Australia’s Note Verbale of 23 July stated.
The absence of a legal basis for maritime features to generate legal entitlements beyond UNCLOS – for which Australia is now pointing the finger at China over its claims in the South China Sea – was no impediment to its inclusion of the Reefs into its economic maritime territory in 1997 and it was not raised at all in the 2016 Ure-Chan adjudication.
Double standards or a missed opportunity?
Ure v Commonwealth of Australia [2020] FCA 336 Yates J, 13 March 2020
The post Coral Sea reef contest echoes China outcrop “island” claims appeared first on Carter Capner Law.

Rounding the right hand bend into the home straight of the 1600m journey in race 7 on the card, Darcey – a 4yr-old mare – was boxed in on the rails with two horses in front and two on her outside.
In an attempt to challenge the leaders, jockey Glenn Lynch led Darcey out from the rails to buffet the mare on his left under the control of rider Greg Ryan.
Against the pressure exerted by Lynch’s mount, Ryan kept his mare on her line for 30 m or so and nosed ahead of Darcey as the pair came out of the turn.
Lynch then aggressively pushed further to his left increasing the pressure against Ryan’s mount to such an extent that its hindquarters abruptly shifted out and its legs to become entangled with those of the gelding following behind.
That mare – Blue Onyx – fell to the Tamworth track grass with jockey Hari Singh who sustained serious injuries.
That was in August 2012.
In the lawsuit that came before the NSW Supreme Court in May 2019 it was revealed that Lynch had been charged by the Tamworth stewards and found guilty of breaching Australian Rules of Racing rule 137 (a) which prohibits “careless, improper, incompetent or foul riding”.
Lynch’s insurer nevertheless claimed liability immunity for the injury consequences of his negligent riding claiming that the fall was an “obvious risk” of a “dangerous recreational activity”.
Justice Des Fagan approved the parties’ agreement to the extent of Hari Singh’s damages at $5 million but concluded that Lynch’s careless riding was not negligent because it was no more than “a lapse of judgement under intense pressure in dynamic circumstances where the defendant and all of the jockeys around him were under a professional obligation to race to win”.
He also ruled that even if Lynch’s riding had been negligent, professional horse racing was a “dangerous recreational activity” and the fall that occurred was “the materialisation of an obvious risk” of the sport such that – by operation of NSW Civil Liability Act s 5L – the insurer was relieved of any obligation to part with its money.
His Honour followed the authority of recent NSW higher court decisions that held – for Civil Liability purposes – sporting activity was “recreational” even when conducted by professionals. He was not persuaded by a Tasmanian ruling on another jockey injury case that CLA liability immunity does not to extend to professional activities.
Leave was given to Mr Singh to re-argue on his appeal against the decided NSW authority as to whether the activities of professional sports people were when properly considered, “recreational”.
The court for his appeal was thus constituted by five judges rather than the customary three.
All five agreed that horse racing met the definition in CLA s 5K of a “sport” whether or not it was carried on for financial reward. They also agreed that it involved “a significant risk of physical harm” thus qualifying it under the statutory definition of “dangerous recreational activity”.
The appeal justices also concurred that Lynch’s conduct was reckless, not merely careless and – overturning the lower court decision – that Lynch had been negligent.
Where they differed was in the identification of the particular risk that Lynch’s insurer claimed to have been “obvious” to a reasonable person in Mr Singh’s position.
Justice Fagan had identified the that risk as that “of the appellant’s mount falling, bringing him to the ground and causing him injury.”
The majority – Justices Basten, Leeming and Payne – agreed, concluding that although Lynch’s riding was “unexpected, unreasonable and also unnecessary” the reckless and deliberate character of wrongdoer’s conduct did not alter its “obviousness”.
As straight forward as that proposition may be, their Honours’ further explanations perhaps “over-intellectualised the process”, a danger that Justice Basten had specifically warned against.
Consider for example: “Obviousness is to be considered prospectively,” but the exercise “involves a combination of foresight and hindsight”.
And, the characterisation of the risk should be at a general level but “must not be so broad as to encompass all possible risks associated with the activity”.
The minority – Justices McCallum and Simpson – considered the trial judge’s formulation of the “obvious” risk Singh was taken to have accepted to be “at an undue level of generality” because it failed to “have some regard to the mechanism by which the relevant injury was caused”.
The range of “careless riding” included – they explained – common occurrences among the range of careless conduct a participant may reasonably anticipate therefore “obvious”. Other conduct within that broad description might be rare and therefore not “obvious”.
Considering the evidence – including that of jockey Greg Ryan – that Lynch’s aggressive unexpected breakout attempt involving as it did a “deliberate and persistent riding” to push another horse off its line, was rare and carried a significant risk of causing another horse to stumble.
In their view the risk of harm that eventuated was a risk that another rider would deliberately ride his horse so recklessly as to endanger other riders.
“The distinction is between careless riding (as outlawed by the Australian Rules of Racing) and deliberate act of causing a horse to collide with another and put it off its line of running (which is also outlawed). While the former is an obvious risk of the sport of horseracing, the latter in our opinion is not”.
They also observed that the Civil Liability Act should not be interpreted in a way that “effectively gives license to individuals to engage in conduct that involves risk of harm beyond that which may be reasonably expected to be anticipated as part of the pursuit activity in which the injured person voluntarily engages”.
The majority judges’ upholding of the insurer’s immunity contention means jockey Singh has been denied his claim.
It should be noted that the narrower definition of recreational activity in Queensland’s CLA – which is confined to activities engaged in for enjoyment, relaxation or leisure and contains no reference to “sport” – has lead to a different conclusions in Queensland.
In Tasmania, where  the analog includes within the relevant definition, like NSW, a “sport” – whether or not it is “organised” – liability immunity has been held not to extend to professional activities.
So while the dichotomy of appellate views makes this case a potential candidate for appeal to the High Court, the  significant differences between each State’s “dangerous recreational activity” enactments (and the absence of any such provision in Victoria) may be cause for that court to decline to entertain any appeal.
Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152 Basten JA, Leeming JA, Payne JA, McCallum JA and Simpson AJA, 23 July 2020  Read case
 
The post Jockey’s $5 mil racetrack injury suit splits court 3/2 on appeal appeared first on Carter Capner Law.

A financial planner has lost his appeal against an order that he pay compensation to a motor accident victim for failing to warn her against over-spending her injury compensation funds.
Michelle Bankier was awarded almost $2 mil in 2002 from the spinal injuries she sustained as a 16-yr-old in a 1997 car accident in which her mother was driving.
She consulted Anthony Avery of Avery Financial Planning to provide financial advice concerning the $1.13 mil that was available for investment.
In June 2007 her portfolio had grown to $1.308 mil from $1.132 mil. By the end of 2008 – as a result of unsuitable investments and imprudent spending – its value had diminished to just $700k.
Most imprudent was a long-term money drain in the form of an international surfing photography fantasy which was a complete failure.
Avery advised her in October 2008 to close the business and abandon the premises she had leased even if she couldn’t find anyone to take over the lease.
But it was what he had failed to tell her before then that sparked a lawsuit against him after Michelle terminated his services in June 2010.
The Statement of Financial Advice prepared back in 2002 recorded “lifestyle goals” of “large gifts to her mother and brother” and “adequate tax effective income to meet current and projected living expenses” estimated at $54k/yr indexed to inflation.
That and the career as a self-employed freelancer surfing photograper.
Justice Glen Martin concluded in May 2019 that Avery’s advice was “too low key” for this particular naïve client and that his absence of warning against – what to others might been obvious – extravagant travel to international surfing events, made him liable for her “loss”.
When the matter came before the Court of Appeal in November 2019, Avery emphasised again that the dissipation of her funds arose from Michelle’s own imprudence.
Justice Walter Sofronoff in delivering the lead judgement with which Justices Philip Morrison and Anthe Philippedes concurred, agreed that the planner’s advice had been inadequate and that he ought to have warned her against high spending, generous gifts and improvident investments.
“She wrongly believed that she had enough money to afford these expenditures,” he wrote in his 35 page judgement and it was Avery’s duty to temper her optimism which he failed to do.
The planner had also raised a defence under Civil Liability Act s15 contending that it did not owe a duty to warn about an “obvious risk” ie a risk that would have been obvious to a reasonable person in her position.
Although she must be taken to have known that the depletion of her capital would reduce or even eliminate her capacity to fund future needs, what she did not understand was that her ongoing expenditure would have the same effect.
Michelle’s “position” was however that she “lacked the experience and knowledge to understand the potential consequences of her actions”.
“It should be obvious that a professional adviser must approach an inexperienced client in a different way from a sophisticated client,” the appeal court President observed. “If a client lacks the necessary experience …. the scope of the duty to advise will be wider and indeed may be much wider”.
Justice Sofronoff also considered the planner’s determination of Michelle’s prospective annual income at $58k to be “financial alchemy”. He noted that after fees her net income – using the planner’s own calculations – was only $34k and for other years about $45k.
Avery was successful in gaining a $36k reduction in the “gross up” some included in Justice Martin’s award. He had contended that no gross up – a component added to an award so that after payment of tax, the claimant is left with a net sum tax-free as intended. Justice Martin had allowed for both the tax payable on the damages and the tax that would be attracted by the gross up sum itself. The second gross up – $36k – was disallowed, leaving Michelle with $1.103 mil as her ultimate outcome.
HAP2 Pty Ltd v Bankier [2020] QCA 152 Sofronoff P, Morrison JA, Philippides JA, 21 July 2020
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A negligence claim in NSW’s Supreme Court relating to an adverse outcome from surgery conducted in Toulouse and adjudicated under French law, has yielded big damages for a former Newcastle Knights player.
Lucas Miller – then 22-yrs-old – tore his right anterior cruciate ligament while playing in December 2010 for St Gaudens against Montpellier in a tackle that impacted the knee.
The injury was treated arthroscopically in January 2011 by French surgeon – Dr David Jones – by ligamentoplasty using a transtibial approach.
After completing a demanding five-week rehabilitation program involving reconditioning and physiotherapy for 8 hours each day and having been given the all clear to play by Jones, he returned to Australia in July that year.
On return to training with a view to restarting his rugby league career, he noticed pain and discomfort in his right knee.
Sydney Orthopaedist Bruce Caldwell diagnosed instability and a tear to the medial meniscus and performed an arthroscopy in March 2012 to remove all the earlier graft material and fixation devices to settle the infection he observed in the procedure.
In July he performed a revision ACL reconstruction. That surgery was successfully performed but could not remediate infection-related tissue nor did it obviate the severe pain Miller experienced in the knee.
He retired from the sport at the end of the 2014 season.
Believing the French surgeon had botched his reconstruction by placing the ACL graft too vertical – with femoral tunnels in an almost 12 o’clock position – and that he had left in the graft non-dissolving sutures that led to infection, he filed a lawsuit in Sydney in April 2015.
Jones’s insurer applied in August 2017 to have the Sydney proceedings “stayed” to allow Miller to re-start his claim in France. Such course was appropriate it contended, because that’s where the surgery had occurred and French law applied to the claim.
The contest came before Justice Geoffrey Bellew who noted that while Jones was fluent in English, Miller was not in French. Most compelling though was that the plaintiff and all the witnesses he proposed call resided here in Australia. In those circumstances His Honour was not satisfied that NSW was “a clearly inappropriate forum” and refused the insurer’s application.
The court was well-equipped, he observed, in applying laws of other places and this could be accommodated by calling evidence on the relevant issues from an expert in French law.
Not to be outdone, the insurer later filed its own proceedings on the same facts in France and re-applied to the NSW Supreme Court in August 2019 to “stay” those proceedings so those in France could go ahead.
That application was likewise dismissed with Justice Bellew noting that the relevant discretionary factors leading to his earlier determination remained essentially the same.
The trial was conducted over five days in October 2019.
Miller relied on opinion from Brisbane orthopaedist Simon Journeaux to prove to the court that the 2011 surgery was suboptimal and for his expert in the French law of civil liability and damages, French lawyer Benjamin Nataf.
Mr Nataf and Dr Jones’s expert on the law of France, Parisien attorney Sebastien van Teslaar referred the court to Article L 1142 – 1 of the French Public Health Code that establishes liability on the part of medical professionals if they commit an error.
Broadly speaking, it was accepted that French liability law was much the same as the common law of torts.
Mr van Teslaar explained that in France, doctors also have contractual liability – an “obligation of means” – if the fault of the doctor is proven. “Just because the result was not the one expected doesn’t mean the doctor committed default,” he explained.
Somewhat surprisingly, there is also in France the notion of “loss of chance” in the context of fault.
The vertical position in which Dr Jones performed the graft was, according to Dr Journeaux a “manifestly inadequate position for a reconstructive procedure involving the ACL”, one which would not produce the optimal strength and stability required to allow the patient to return to professional rugby league.
With Journeaux’s opinions accepted, the requisite “fault” under French law was found to have been made out.
Dr Journeaux was also of the view that the knee was likely infected “primarily from the index procedure” but infection would probably have occurred even had the reconstruction been expertly performed.
He attributed as “an educated guess” that 50% of the residual knee damage resulted from the “poorly done reconstruction” and the other 50% was due to the infection.
French law as to damages was also explained by Mr van Teslaar as being remarkably similar to that of the common law world, albeit with different terminology and some codification of damages categories.
Several categories of French compensation make up what we call general damages. Firstly, for “temporary functional deficit” compensation of €600 – €900 per month is allowed. Next for “permanent functional deficit”, van Teslaar explained that someone in Mr Miller’s position could expect to receive between €60k and €90k, with a further payment for “pain and suffering”. Justice Bellew awarded €79k for the former and €7k for the latter.
Further compensation for scarring of €1k and €3k was allowable plus a “non-financial loss of amenity” payment for example being unable to carry on be or other pursuit – depending on how intensely it was carried out pre-accident – €2k and €6k could be expected.
Recovery of the value of voluntarily supplied services to and injured claimant is also recoverable but only at €15 to €18 per hour.
As to economic loss, Miller had sustained a serious a right knee injury in 2008 when playing as a junior for the Storm.
The court accepted he transferred to St Gaudens to prove that his left knee had recovered from the 2008 injury with a view to obtaining a Super League contract before returning to Australia to play in the NRL. He would – according to Justice Bellew likely have joined an NRL team and enjoyed a 7-year career earning about $125k per season had the surgery been competently performed. Thereafter he would have pursued a career in the mining industry earning at the same level.
The matter was stood over for the parties to agree damages based on His Honour’s rulings. Unfortunately there is no record at the time of writing of what total damages were arrived at.
Taking into account the infection related 50% reduction applicable to the assessment, the total damages for the 32-yr-old (at time of trial) are still likely to be in seven figures.
Miller v Jones (No. 6) [2020] NSWSC 736 Bellew J, 17 June 2020 Read case
 
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A court ruling that made a wide-load truck driver responsible for an $850k traffic accident injury because he didn’t disobey road rules has been successfully appealed.
Experienced trucker Stephen Ryan was holding his articulated vehicle at traffic lights in a right turning lane at the poorly lit exit of a major NSW highway when a Holden Commodore station wagon struck the rear of his trailer.
The exit lane and the traffic islands were configured in such a way that it was impossible to make the right turn from the exit lane of the Princes Highway into Farnell Ave in Sutherland south of Sydney whilst keeping the rig wholly within the lane.
And the distance from the turn right intersection at which the prime mover had stopped to the rear of the trailer was insufficient to accommodate the vehicle’s full length.
The photograph reproduced above (and referred to in the judgment) shows the configuration of the traffic lanes. The yellow arrow represents the approximate position of Ryan’s truck while the orange line reflects the path taken by Bradley Stahlhut’s Commodore in the inner of two northbound lanes before the collision and after.
However even after extending the vehicle as far as possible into the available turnoff area, the trailer overhung the trafficable area to the rear by 50 cm.
Had Ryan moved 2-3 m further forward beyond the stop line – and committed an offence in so doing – the rear protrusion of the trailer would have been cleared.
While oversize vehicles are exempted from the requirement to comply with some Australian Road Rules if it is not practicable and while taking reasonable care, this measure was not one to which an exemption applied.
When the motorist’s compensation claim came before the NSW District Court, all parties accepted that the mere fact that such conduct was an offence did not preclude Ryan from being required to exercise reasonable care towards other road users.
The court concluded after a four-day hearing that heard evidence from several accident reconstruction experts that Ryan’s failure to move the truck further forward to eliminate the danger posed by the trailer overhang and his failure to illuminate hazard lights to warn following motorists constituted a breach of his duty.
It ordered Ryan’s CTP insurer to recompense to Stahlhut’s workers’ compensation insurer for injury compensation funds it had paid to him.
The CTP insurer appealed, contending that a reasonable truck driver in Ryan’s position would not have advanced the rig beyond the stop line into the “dark and unfamiliar” intersection to avoid a 50 cm overhang.
It was dangerous to do so and, it argued, the overhang did not materially contribute to the accident.
Because the trailer was well lit at the rear including with flashing lights and an illuminated “oversize vehicle” was clearly visible for at least 100 m distant, following drivers ought – the truck driver’s insurer argued – to have been aware that its presence.
An oversize vehicle in a turning lane “carries with it the possibility that it may extend into the adjoining lane,” so went its argument.
Justice Mark Leeming in the NSW Court of Appeal was inclined to agree – given that the trailer intruded by only 50 cm into the motorist’s lane which was 3.7 m wide – that Ryan was unlikely to have been in breach of his duty.
He decided the appeal in the truck driver’s favour but on the grounds of unproven causation.
Justice Leeming with whom the other appeal justices agreed, found that Stahlhut had ample opportunity to have placed his vehicle into the centre of the northbound lane to avoid the trailer’s encroachment. On that basis the overhang itself could not have been said to have been a cause of the accident.
Neither was the absence of hazard lights in their view, a material cause.
“It is known that [Stahlhut] failed to [move to the centre] when there were six lights, two of which were flashing, on the trailer,” Justice Leeming wrote in his lead judgment. “Why would it be inferred that a seventh [hazard] light would make any difference?”
Ryan v Workers Compensation Nominal Insurer [2020] NSWCA 38 Leeming JA, Payne JA, White JA 11 March 2020  Read Case
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The NSW Court of Appeal has ruled in four test cases what hire charges are payable by at-fault drivers for a “free” replacement vehicle provided to the person whose vehicle they damage in traffic accidents.
In separate and unrelated circumstances, four owners suffered damage requiring repairs that meant their cars were temporarily unavailable. Each owner hired a replacement vehicle and claimed the full cost as damages against the at-fault driver’s insurer.
All four arrangements were “credit hires” where the car hirer delivered a temporary replacement vehicle “on credit” for a fixed period. The company claims its hire charges from the at-fault driver’s insurer but is entitled to recover any shortfall from the user.
At issue was whether the costs of the replacement vehicle should be confined to one that performs the same function as that which was damaged as opposed to the charges for the hire of an equivalent vehicle in terms of luxury and prestige.
Notwithstanding that the hires were “on credit” – from which it might be inferred that the hire fees would be greater than those in the conventional hire car market – the charges were noted by the court to have been no greater or at least similar, to rates payable in the conventional market.
Justice Arthur Emmett in delivering judgement for the majority confirmed the entitlement to damages for the cost of a replacement vehicle did not depend on the damaged car being used for an income producing purpose but rather was referable to the owner’s “need” for the vehicle.
“The object of an award for damages in an action in tort is to put the claimant, so far as money can, in the position that the claimant would have been but for the loss,” he observed.
He went on to explain that the determination of “need” is not an objective test related to the damaged vehicle’s function. The “need” – much like that in relation to voluntary care received by an injury victim – is that of the claimant and should therefore be determined subjectively.
Whether the claimant has a desire to use the damaged vehicle.
Thus where a property damage victim’s luxury vehicle is undrivable, the wrongdoer must compensate for the replacement hire of an equivalent rather than a vehicle that might adequately perform the same functions.
“The loss that the claimant suffers which give rise to the relevant need is a deprivation of use of the damage vehicle, not simply deprivation of the use of a means of transportation”.
If the same model vehicle speced up to the same standard is available for hire, the damages calculation exercise can be easily determined by reckoning the cost of hiring that vehicle as the replacement.
If an identical vehicle is not available the damages are determined by reckoning the cost of replacement of something near to equivalent, provided that cost is reasonable.
So in the case of Azad Cassim’s damaged BMW 535i – where the owner’s evidence was that he required in the temporary replacement an equivalent level of comfort – his hire was of a Nissan Infiniti Q 50 which at a cost $17k over an 11 week period.
The at-fault party’s insurer contended that he should have been content with a Toyota Corolla at less than half that cost. The appeal court rejected that submission and said that his need had been made out for his own vehicle and hence the cost of the hire of an equivalent should be paid up in property damage compensation.
Similarly in relation to Alex Rixon’s Audi Q3, the appeal court accepted that a Toyota Corolla would not have been sufficient replacement for the two-month period over which repairs were performed. The magistrate’s decision of the adequacy of any four-door sedan “of considerably less impressive specifications”, was overruled.
But its not always apples for apples or should I say Audis for Audis.
After Bilal Souaid’s Lexus IF 250 F Sport Prestige was damaged, he gave evidence that was content with any vehicle “just as long as I have a car therefore my wife, for the kids and stuff. I wasn’t fussed at all”. In those circumstances the court refused to order payment of the hire cost for the BMW 735i provided by the hire company on the basis that a Toyota Camry would have met his actual needs.
Consider also the case of Seung Lee who took up the use of the temporary replacement only “because the hiring company delivered the vehicle to her home address” and she did not have to pay for it. Given her evidence that she had no real need to use a vehicle while her Toyota Camray was under repair, the court ruled there was no relevant “need” and hence no replacement vehicle hire charges were recoverable from the at-fault party.
It can be seen therefore that the costs of hire of a luxury vehicle to replace one of a similar marque under repair is recoverable when the owner confirms that they would have made use of that vehicle during the repair period and they desire to have the same level of comfort in the interim.
Lee v Strelnicks; Souaid v Nahas; Cassim v Nguyen; Rixon v Arsalan [2020] NSWCA 115 Meagher JA,White JA, Emmett AJA, 18 June 2020 Read case
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Councils and other authorities responsible for roads enjoy broad liability immunity for injuries caused by their otherwise negligent omission to keep their streets in good order and repair.
Whether a particular task that pavement crews are required to perform comes within a council’s road repair function – an therefore insulated against injury liability –  was central to a recent appeal against a compensation order in favour of a motorbike rider injured while negotiating a flooded causeway in country Queensland in September 2016.
Paula Tait – a Goondiwindi local – was no 3 in staggered formation on her Yamaha XVS 1100 for the Sunday ride of about 400km conducted in bright sunshine after weeks of heavy rain.
There had been many signs along the route warning “rough surface” and “slow down” but the group of five had managed for the best part, to sustain 80 kph for the tour.
Heading south from Moonie on the Leichhardt Highway on their return to Goondiwindi, they approached the Mittengang Creek causeway, a 100m stretch of the road constructed to a lower height to allow floodwater to flow across.
Rounding a gentle bend and just as she passed a (permanent) “Floodway” sign, Paula saw the preceding motorbike suddenly become airborne and its rider also thrown into the air.
By now at about 40 kph and in thick dry gravel which made the motorbike harder to control, her front wheel descended into a deep 1 m long pothole, causing the motorbike to cartwheel end to end and catapult her into the air.
Lead rider Belinda Trehearn – circling back to warn the group after herself having narrowly avoided the pothole – witnessed the mishap and saw Paula crash to the ground.
Paula sustained serious injuries to her back and left foot that hospitalised her for three weeks. She was unable to return to work until April 2017.
Others at the scene discovered a fallen over sign warning of the danger at the northern entry to the causeway displaying ROUGH SURFACE (black letters against a yellow background) and REDUCE SPEED (white letters against a red background).
Suspecting that those responsible for the road had been aware of the danger but had taken insufficient measures to warn of the hazard, Paula sent an injury compensation ask to the Goondiwindi Regional Council.
The council admitted it had responsibility – under a Road Maintenance Performance Contract (RMPC) with the Department of Transport and Main Roads – for the maintenance of the state-controlled highway and the causeway on which the accident occurred.
It refused compensation though contending that the circumstances were such as to accord it Civil Liability immunity for all injuries arising from any failure to keep the causeway in good repair.
Paula’s investigations revealed that in the week preceding the accident various council officers had traversed the floodway and had observed potholes that “were likely to worsen” and that the conditions “looked dangerous to road users”.
The floodway was inspected first hand by the council’s engineer on the Thursday before the accident. He alerted the council’s pavement crew of the need for an inspection and “potential signage”.
In response, the crew attended and would have begun patching work immediately but were unable to do so because the floodwater had not receded sufficiently for them to use the materials they had aboard their truck.
They erected freestanding signs – those that were later discovered to have fallen over – on the grass verge beside the highway on both approaches.
Because they had no sandbags with them they left the legs of the signs unsecured.  Sandbags had been in high demand for use against rising floodwater in many places in the council’s area of responsibility.
The motorbike injury lawsuit came before Judge Nathan Jarro for determination in Brisbane’s District Court in August 2019.
Paula, a practice nurse at the Goondiwindi Medical Centre, the four other riders and various council personnel all gave evidence during the four-day trial.
After hearing from the council employees, His Honour concluded that the temporary signage had blown over at some time on the weekend before Paula’s accident.
The  council contended its only duty was to perform maintenance once a defect reaches the “Upper Intervention Level” as per the RMPC and that because it did not know of risk posed by the pothole at the time of Paula’s accident occurred, an immediate maintenance response had not yet been triggered.
Judge Jarro pointed to other obligations in the RMPC and found that in fact it owed a duty “to fix intervention level defects and defects deemed to be a safety hazard in a timely and efficient manner and to maintain the road network to a safe standard for the travelling public”.
The council appealed against his decision that it had breached that duty.
It argued that CLA section 35 tempered the expectation of an immediate maintenance response against its financial resources and demands from other departments and constituents.
It also asserted CLA section 37 grants immunity for failing to repair or inspect a road to decide whether or not it needed repair if at the time of injury it had no actual knowledge of the particular risk relating to the pothole.
Justice Phillip Morrison in delivering the lead judgment observed that the council’s appeal submissions failed to take into account the numerous findings made by the trial judge as to the actual knowledge of council officers of the deteriorating state of the floodway, that potholes were beginning to develop and that conditions were sufficiently dangerous to traffic to require the erection of the “ROUGH SURFACE” and “REDUCE SPEED” temporary signs.
He also noted that the particular risks which the council ought to have guarded against was that associated with its failure to adequately secure the warning signs to forewarn road users of potholes.
“There was a foreseeable risk of personal injury from the road surface being or becoming unfit for the passage of vehicles at what would ordinarily be a safe and lawful speed. Pending the repair, this required the Council to erect warning signs and to do so with reasonable care,” he wrote.
The appeal judges agreed that the council’s functions to repair and keep a road in repair included that of erecting temporary warning signs about the condition of the road.
Thus section 37 (1) would have exempted – they explained – the council from liability but for the operation of CLA 37 (2) which could not operate because of the actual knowledge of the council’s employees.
The council also asserted that it was entitled to liability immunity for the motorbike injury under CLA s 35, because in fact there were no sandbags available to secure the signs due to the council supply being exhausted some four days earlier.
“The difficulty which the council confronts is that those erecting temporary signs could have used any heavy weight or star picket simply affix the temporary signage to the permanent floodway signs.”
The injured motorbiker testified that had the temporary sign remained in position, she would have reduced speed much earlier and would likely have avoided the pothole. Despite this, the council contended there was insufficient evidence to conclude that the absence of signage contributed to the accident.
Each of the other riders bolstered Paula’s claim by swearing they rode according to conditions and whatever signs there were “we’d observe them”. They also testified to Paula’s “meticulously safe” riding expertise and her “confident and cautious” manner.
In the face of that evidence, the Court of Appeal agreed had Paula would have been able to avoid the hazard had she been adequately warned and that her riding had not contributed to the calamity .
“There was a reduction in speed not prompted by anything but the floodway sign and had the temporary signage been up, the speed would have been reduced even further and Ms Tait would have been able to avoid the pothole,” Justice Morrison concluded.
The trial judge’s ruling that the council must bear all the fault for Paula’s injuries was confirmed.
Orthopaedist Greg Gillett assessed Paula’s lumbar spinal impairment at 22% and 4% for her left foot. His colleagues Dr John Tufley and Dr John Fraser concurred.
The council was ordered to pay the sums Judge Jarro assessed for the 61-yr-old namely, general damages of $97.5k; future economic loss of $60k; and past economic loss of $21k making up a total of $304k.
Goondiwindi Regional Council v Tait [2020] QCA 119, Morrison and McMurdo JJA and Burns J, 5 June 2020
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A cyclist who swerved to avoid a vehicle exiting a designated parking bay on a wide Townsville thoroughfare has been awarded substantial damages for injuries he sustained by falling to the roadway.
Alan Zavodny slowed his bike as he approached the row of nose-in parking bays at the front of a popular party hire store on McIllwraith St.
At the same moment Kevin Couper was preparing to reverse his Holden Colorado out of one of the bays.
As the Holden moved backwards, the cyclist swerved hard right to avoid an impact, jack-knifing the bike and falling hard to the bitumen.
That was in September 2014.
The 59-yr-old fishing charter captain had a recovery complicated by infection and several hospitalisations.
He was left with diminished capacity for prolonged standing, climbing, bearing weights, and working in confined spaces.
All attempts to return to fishing charter roles were unsuccessful because he had lost the “sea legs mariners’ need to move and climb about a moving vessel effectively, including over, up and down damp decks, gunwales, steps and ladders”.
Fast forward to November 2019 when the protagonists and numerous expert witnesses came before Justice Jim Henry for the adjudication of Zavodny’s injury compensation claim in the Supreme Court in Cairns.
Couper’s insurer conceded negligence in causing the injuries but asserted the injured cyclist himself bore a significant share of blame for riding too fast and failing to keep a sufficient look-out in the direction of the parked vehicles.
There was no evidence to support the insurer’s suspicion as to the cyclist’s excessive speed or inattention.
There was no evidence that the injured cysclist was travelling too close to the rear of parked cars. Neither did His Honour accept that he was required to ride his electric bike in the centre of the westbound carriageway rather than to the left.
“Riding to the left conformed with his legal obligation under s129(1) Transport Operations (Road Use Management—Road Rules) Regulation 2009 to ride as near as practicable to the far left side of the road,” Justice Henry ruled.
And accepting that the Holden had been reversed out suddenly as opposed to “creeping slowly out so as to provide some indication to reasonably attentive road users”, he was not prepared to deal out any share of the blame to the cyclist.
QBE’s main assault in the four-day contest was however reserved to its attack on the extent of disability the cyclist claimed had resulted from the injuries to his left shoulder, ankle and foot.
It relied on the opinions of three medical experts in an attempt to paint the injured cyclist’s several unsuccessful trial fishing charters in Western Australia as evidence of his unrestricted capacity to earn income in that field.
Orthopedist Dr John Fraser provided an assessment of Zavodny’s residual ankle impairment at just 1% as opposed to those of his colleagues Ronald Thomson (10%) and John Maguire (11%).
Psychiatrist John Chalk measured the resulting adjustment disorder at 4% as against that of 15% from colleague Dr Riccardo Caniato.
His Honour observed that both Drs Fraser and Chalk “curiously held a similar misunderstanding” that Zavodny had only been kept away from his fishing charter work by the lack of available work.
“It is difficult to avoid the impression that Dr Chalk’s misunderstanding in that regard may have led him to express an unduly robust opinion about Mr Zavodny’s ability to return to his former field of employment”.
But his honour’s greatest displeasure of the evidence adduced by the insurer was left for the occupational therapist it had recruited to the contest.
Ms Sanja Zeman swore Zavodny had “an ongoing capacity for employment on a full-time basis as a ship’s captain with no loss of earning capacity”.
“That opinion was not credible,” Justice Henry decided.
Zeman refused to retreat from that opinion notwithstanding having very obviously mistaken attempts by the plaintiff to perform gym exercises with successfully and regularly performing them at high repetition.
She also mistakenly disqualified him to act as a ship’s captain on the grounds of failing eyesight notwithstanding that when wearing glasses Mr Zavodny’s visual acuity met the requisite standard.
“This may have simply been an oversight or error by Ms Zeman which, like her error regarding the high intensity interval training, happened to support an opinion adverse to Mr Zavodny’s case.
“However, even if only errors, those features of her evidence combined with another to detract from the reliability of her opinions generally”.
The third feature of the OT’s will testimony to which His Honour was referring was her obvious reluctance in cross examination to answer questions premised on facts she was asked to assume in relation to the plaintiff’s trial returns to the bridge of fishing charter vessels in Western Australia.
Instead of providing an opinion based on the hypothesis put to her – presumably because of the assumptions the defendants’ legal representatives had briefed to her – Ms Zeman wanted to argue why that hypothesis was wrong.
When she finally agreed to assume that Zavodny could not perform all relevant charter captain’s functions she “surprisingly” refused to concede that her opinion as to his capacity to perform that work would be any different at all.
“This was a disappointing response for a purportedly objective expert”.
His Honour found Mr Zavodny’s account that his ankle injury “has such multi-dimensional adverse consequences on board vessels that it is difficult to conceive of any realistic form of paid seafaring work for which he would be physically competent”.
“From an objective viewpoint it is to his credit that Mr Zavodny had such a strong desire to reclaim his beloved career that he made many attempts to do so”.
Justice Henry decided an ISV of 25 to give a general damages award of $49k. With past income loss of $296k and future loss of income earning capacity of $206k, CTP insurer QBE was ordered to pay a total of $634k.
Zavodny v Couper and Anor – [2020] QSC 42 Henry J, 13 March 2020
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An appeal court has cleared a major injury compensation payment to a crack-hardy police constable whose superiors neglected to monitor her known PTSD condition during the four years after a return-to-work medical made the monitoring recommendation. Constable Melanie Sills had joined the force in May 2003 at age 26. When her GP diagnosed the condition […]

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Global resources company Glencore has been ordered to pay $1 mil in compensation to an underground miner for an injury complicated by depression that a forensic psychiatrist reported to be faked. Daniel Walker’s duties at the Newlands mine in the Bowen basin included cutting coal and building underground roadways. In April 2013 he was operating […]

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A marine tourism operator has claimed civil liability immunity to avoid payment of $400k compensation for a serious spinal injury sustained by a passenger when its excursion boat encountered a steep wave. In September 2012 Louise Lightfoot – a U.K. born recruitment consultant who moved to Australia in 2010 – booked tickets online for a […]

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Just how many medical examinations can an insurer require an injury claimant to endure? Consider the case of William Hinrichsen who suffered shoulder, neck and back injuries in a bulldozer mishap at Glencore’s Hail Creek mine in January 2016. Occupational physician Chris Cunneen was the first of three medicos to examine the worker under request […]

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In the world of fruit, grapes rank the highest in the stakes of injury causation to unsuspecting foot traffic. Such a case was yet again before a Queensland court in February to decide if Debbie Deans – a specialist at Riverside Christian College in Maryborough – was owed compensation for a school teacher injury sustained […]

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A struck-down pedestrian has sued a national law firm for allegedly advising her to “under settle” her spinal injury compensation claim. Natalie Manasse was hit by a bus while walking along Sunshine Beach Road at Noosa Heads in March 2009. She hired a Hervey Bay law office to pursue bus accident compensation against QBE as […]

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The Court of Appeal has overturned the acquittal of QAS’s handling of an emergency asthma casualty who suffered a catastrophic hypoxic brain injury en route to Cairns hospital for treatment.
In July 2018 – after nine days of testimony and argument – Justice Jim Henry sitting in the Queensland Supreme Court in Cairns, interpreted the expert evidence as holding “adrenaline is and likely was regarded as preferable to salbutamol for administration to asthmatics in extremis.”
On that basis he dismissed the claim for damages – agreed by the parties at $3 mil – argued in court by Jenny Masson’s estate following her death about 12 months before the trial.
The case turned on whether or not the administration of IV salbutamol, an agent generally used for acute episodes of bronchial asthma, was contrary to QAS guidelines and contra indicated in those circumstances.
Competing opinions of emergency medicine experts as to which of the two frontline agents available to treat an acute asthma onset – adrenaline and salbutamol – were presented.
For the plaintiff Professor Gordian Fulde – who literally wrote the book on the subject, Associate Professor John Raftos and Dr John Vinen all attested to Adrenaline to being the agent of “first resort” for patients “in extremis”.
Their Queensland counterparts Professor Anthony Brown, Associate Professor Rob Boots and Dr Geoffrey Ramin eloquently explained that although a large part of the medical profession would favour adrenaline, that preference was not premised on scientific facts.
Justice Henry concluded that the early administration of adrenaline would likely have avoided the injury but excused the ambulance officer for his preference for salbutamol because the standard of care in an emergency to be expected of a first responder in the field, should not be regarded as high as that of a hospital physician.
On appeal Justice Phillip McMurdo in delivering the lead judgment thought the trial judge’s conclusion that there “was a responsible body of opinion to support the administration of salbutamol to a patient with Ms Masson’s high heart rate and blood pressure” involved a misinterpretation of the evidence.
Further, the QAS guideline “made sufficiently clear, adrenaline was the preferred drug in order to achieve a fast and effective dilation of the bronchial passages, so as to avoid death or the permanent effects of the deprivation of oxygen to the brain”.
The flowchart in the guideline “required the officer to ‘consider adrenaline’, not to ‘consider adrenaline or salbutamol’,” he reasoned “and showed salbutamol as the drug to be “considered” only in the circumstances of a less serious case”.
The evidence of Drs Flude, Raftos and Vinen was consistent and authoritative in the appeal judges’ view.
Prof Flude had made it quite clear that “adrenaline was the drug of choice for a case of a patient at risk of death. “Though salbutamol has its place, but if the patient is not breathing, it is adrenaline which must be administered,” his testimony clearly stated.
The State of Queensland must now pay Ms Massons estate the agreed $3 mil in damages plus a large portion of its legal costs.
Masson v State of Queensland [2019] QCA 80 Fraser and McMurdo JJA and Boddice J 10 May 2019
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A financial planner whose too “low key” investment advice to a seriously injured motor accident victim resulted in her funds being depleted has been ordered by a court to pay compensation for the financial loss she sustained.
Michelle Bankier was a passenger in a motor vehicle driven by her mother in 1997 when she suffered spinal injuries and another passenger died.
Those injuries and bowel complications caused her to complete her final year of high school over two years achieving an OP of 4. Her tertiary study of marine biology initially led her to a career of surf photography.
The amount available for Michelle’s investment out of the $1.2 mil damages settlement she received in 2002 was $1.13 mil.
For that she consulted Anthony Avery of Avery Financial Planning, to provide financial advice.
In 2006 her portfolio was worth nearly $1.6 mil, but by the end of 2008 – as a result of Michelle’s spending and some unsuitable investments – its value was just $700k.
The source of the dissipation of a significant portion of the funds was Michelle’s passion for photography.
She had some initial commercial success in shooting surfing competition pics but the cost of international travel and a lease of space for a photo gallery proved to be unsustainable.
Her business plan was chaotic, and expenses turned out to be far higher than anticipated. The business never turned a profit.
Avery advised her to close it in October 2008 even if she couldn’t assign the lease.
Putting a stop to business expenses to reduce the drag on her other income and the capital which was supposed to look after her for the rest of her life had now become urgent in his mind.
As we shall see below, that warning was too little, too late.
One of Michelle’s next ventures – which the financial planner denied he encouraged her to pursue – was to purchase an investment unit at Palm Beach.
That turned to out to be reasonably successful in terms of capital gain going from $395k in 2005 to $875k in 2018.
The rental however did not initially cover the loan repayments, meaning that the income available to her from other investments was reduced.
Avery was sacked as financial advisor in June 2010 and Michelle sued his company alleging he ought to have warned her against high spending, generous gifts and improvident investments.
In the dispute heard in the Supreme Court at Brisbane before Justice Glen Martin over 8 days in July and August 2018, Michelle swore the advisor had said the proceeds of her settlement would generate an “annual wage” of “at least an $80,000” and because “you’ve got over a million dollars, you…..would never have to worry about money again”.
She was disbelieved as to some of the assurances she attributed to the advisor.
Justice Martin observed Michelle did “tend to see her world through rose coloured glasses” but that such behavior “would be obvious to Mr Avery”.
“Although he was not her guardian or fiduciary”, ruled the judge, “he was aware of the purpose of which the award was made” and ought to have given more robust warnings and advice.
Avery’s warnings up until October 2008 about Michelle’s spending habits were – he concluded – “fairly low key”.
Generally along the lines that part of her portfolio would have to be sold to pay for travel or so on, no connection had been drawn by him between the spending and the dissipation of her capital and the effect that would have on her future.
But wasn’t it Michelle’s own decisions that led to her loss?
The advisor contended exactly that but in the absence of what the court considered to be adequate warnings from him as to the dangers of the investment being dissipated, it could not be said that it Michelle had contributed to the loss she suffered.
The amount that the investment company must pay to its former client will be decided by the court in a further determination in the coming weeks.
 Bankier v HAP2 Pty Ltd [2019] QSC 101 [Martin J 1 May 2019
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