High Court re-awards injured swimmer $3m 9/2/05 (1 Viewer)

[spell check]

council would be responsible for sure

 

[glycerine]

yeah so it's a more clear-cut case than this, but the pedestrian should've looked before stepping onto the road regardless, it's just common sense... in the same logic as this case

 

[Not-That-Bright]

It's like those 'slippery when wet' signs, i don't know of any material that doesn't get a bit slippery when it's wet... or the "hot drink" label on mc donalds coffee... it's just bullshit.

What if someone trips over on a road because of loose gravel? can they sue then? i mean where's the sign saying 'loose gravel, slippery'.

 

[Not-That-Bright]

Insurance companies are jerks.

 

[joujou_84]

my aunty stacked it in the shopping centre coz she wasnt watching her step on the escalator and got to the end and didnt realise......i think she got like $30 000

edit: a little off topic......but just demonstrating how sometimes out of ur own stupidity, u get paid heaps....but this guys different....hes stuck in a wheelchair for the rest of his life....

 

[glycerine]

Yeah I think the council did have a degree of negligency overall, they could've at least posted signs saying "warning, sand dunes" or whatever. It's not like the courts didn't recognise that this guy had a degree of responsibility.

 

[Not-That-Bright]

yes and i feel sorry for him.. however there are alot of disabled people out there that i'd like to help too, where's their 3.5million dollar lawsuit?

 

[Not-That-Bright]

No, however i was simply addressing the 'this guys different, he's stuck in a wheel chair forever'.

 

[Jonathan A]

...I hate the whole...'he should take responsibility for his own actions'

Everyone makes mistakes, his take cost him alot...If your child or relations was seriously hurt because of a negligence I bet you would certainly not be telling him/her to take responsbility for their own actions.

I agree. The Law of Negligence was set up to ensure people had a remedy against those who owe a duty of care. Say you trust someone to look after your child, and they fail to do so, and your child is hurt, what would you do? You would sue. And you would be using the same law, same legal tests as this man did.

Whilst I agree that negligence claims can get out of hand sometimes, as far as suing your parents for being born where you can prove it would have been better not to have, the fact remains, restraints on this area of law, remove remedies for people. Civil law is often there to clear up injustices one person suffers because of another and many times it has certainly worked well.

 

[Jonathan A]

the guy should take responsibility for his own actions

i do feel sorry 4 him bcos of his injurys...but u should always be careful before u dive into waves

And that's why the law has set up the defence of Contributory Negligence and Voluntary Assumption of Risk, where in defence you can raise a plaintiff contributed to their injury or new the risk and still went ahead.

 

[Jonathan A]

that's true, but we have to draw the line somewhere. In the end, it was his own actions that led to the injury, no one forced him to jump into that wave. yes, the flags could have been placed somewhere else, bu they're supposed to be guidelines, not gurantees of safety.
Also, you have to consider how often juries award compensation because the feel bad for the person, rather then on the merits of the case itself, ie. whether there was any real negligance

Yes if he was forced, he might sue for something else. The law was negligence and we only need to prove a duty (occupiers liability in this case), a breach of duty (fail to warn and misleading signage) and an injury to result (he is now on a wheelchair).

The fact is, the court found the council negligent, and anyone negligent should be liable and as the jury found, the man contributed to his own injuries, so he lost 25% of his compo because of that. Remember also, juries are presented facts from start to finish, we are not. So its easy to point the finger at their 'weaknesses', however we do not know first hand exactly what facts were presented and how in full.

 

[Jonathan A]

yeah so it's a more clear-cut case than this, but the pedestrian should've looked before stepping onto the road regardless, it's just common sense... in the same logic as this case

yes but view it this way. We as drivers are 'professionals' we agree to be able to avoid hazards and respond. We have a higher 'standard of care'. Hence if a person carelessly steps on the road, and a driver hits them, the pedestrian would not be paid as much because they contributed to the accident. If they stepped on the road and you as a driver are 50metres away and you still hit them, you are negligent, if you are 1metre away, likely you will not be liable for the whole sum if any, you might be able to plead the pedestrian knew of the risks of crossing a busy road, etc...

 

[Jonathan A]

It's like those 'slippery when wet' signs, i don't know of any material that doesn't get a bit slippery when it's wet... or the "hot drink" label on mc donalds coffee... it's just bullshit.

What if someone trips over on a road because of loose gravel? can they sue then? i mean where's the sign saying 'loose gravel, slippery'.

I think you better sit next to me in torts this year

 

[Jonathan A]

It only indicates the selfish nature of people that they would criticise the law that was put there so in order to protect them for negligent actions of others.

Insurance companies laugh ever time the government, due to public pressure, reforms tort law making it harder to prove negligence. Insurance companies make more money if some person, like the guy in this case, can't prove negligence.

1. They don't have to pay out.

2. They dock the guy for massive legal costs

Result

One disabled guy with no future and legal costs that he will have to pay the insurance company all his life because he dared to take on an insurance company with unlimited resources.

One insurance company that just saved 3.2 million dollars.

----------

At the moment people are outraged at the payouts people recieve. As a result there is going to be more political pressure for the negligence laws to be tightened....and like everything that means this means insurances companies will fight in order not to pay the injured plaintiff.

The point is - insurance companies will do anything to make sure they don't pay out. Regardless of whether there is negligence of not. They don't care about WHO was at fault. As long as their profit is better than the year before. Insurance companies get bigger profits by not having to pay out - or when they have to pay out paying as little as possible. Tighter negligence laws make it easier for the insurance company with unlimited resources to pay as little as possible to people who have legit negligence claims.

Very true.

People need to distinguish law from economics and politics. I myself formulate my position on this argument based on what the law is trying to do and what evidence was used. Our negligence law system is very advanced and the reforms to it are laughable at how they only empower insurance companies as Asquithian pointed out quite remarkably.

If you want to be a good caring citizen, you should be concerned that our current NSW Government wants to put the squeeze on claims and that now whilst people can avoid courts, you will in the future pretty much only be paid in small amounts for a loss that was much larger. A magistrate said once to us in court (as students) that almost all areas of law are diverting from courtroom and this a problem. I suppose you may differ your point of view if you were a victim of negligence. Think about it people, the council takes our rates and is still negligent. I would see that as an injustice?

 

[MoonlightSonata]

I can't believe that even after the bloody Civil Liability Act, a piece of legislation filled with more holes than Santino Corleone's car, that people still want tighter negligence laws.

If it's an obvious risk, you are assumed to know about it. But if it's not obvious enough, the council can't be held responsible because they could not have reasonably known about it. It's a pretty narrow area to fall into.

 

[alphatango]

This is about the only case where i sort of have an agreement with the plaintiff. This is because when flags are put on the beach, they are telling swimmers that this is the safest place to swim and you must swim in this area. If it could be proved that the council knew about the sandbar being in that place, then they must've realised that it would create a dangerous situation.

In this case, I agree with the dissenting opinion of Justice McHugh (and the opinion of Heydon, as far as it agrees with McHugh). It was agreed by all parties that it would not have been reasonable to close the beach on that day. The plaintiff failed to offer any evidence that placing the flags at any other position would have removed or mitigated the risk posed by the sandbar. Therefore, he failed to show a reasonable and practicable alternative for the council, which is a required element in a tort of negligence.

 

[katie_tully]

While I believe this is an unfortunate accident, I can't help but think it's going tp pave the way for people making similar claims.

A few years back a man was rewarded compensation for cutting himself on broken glass, in an attempted robbery.
Another man was awarded compensation because he tripped over somebody's garden hose in their front lawn.

I know on our farm we've spent several thousands of dollars putting up signs in our sheds and on gates, so if somebody enters our property and does something stupid, we cant be held liable.

 

[katie_tully]

Not-That-Bright
It's like those 'slippery when wet' signs, i don't know of any material that doesn't get a bit slippery when it's wet... or the "hot drink" label on mc donalds coffee... it's just bullshit.

What if someone trips over on a road because of loose gravel? can they sue then? i mean where's the sign saying 'loose gravel, slippery'.

Don't laugh. It has happened. Forbes Shire Council was sued for several millions of dollars when a man tripped on a crack on a cement path way, after that several other claims were lodged.

Like I said before, you cant legislate against stupidity.

 

[katie_tully]

Story come from the Daily tele? I'll pay it if you can find it.

Crap, I'll see what I can do. I don't recall which newspaper it was from, I have a feeling it was televised news also...

Give us a tick

 

[Jonathan A]

I can't believe that even after the bloody Civil Liability Act, a piece of legislation filled with more holes than Santino Corleone's car, that people still want tighter negligence laws.

If it's an obvious risk, you are assumed to know about it. But if it's not obvious enough, the council can't be held responsible because they could not have reasonably known about it. It's a pretty narrow area to fall into.

I know! The Civil Liability act is like this little breif summary of the hundreds of years of common law development of negligence, now its this little political spin-doctoring material aimed to protect us from insurance premium-rises - that's a joke!