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

[= Jennifer =]

A swimmer who became a quadriplegic after diving into a wave at Bondi Beach has won back more than $3 million in damages.

The High Court upheld an award of $3.75 million in damages to Guy Edward Swain, who suffered severe spinal injuries when he dived into a wave at the famous Sydney beach in 1997.

The High Court judges ruled 3-2 that there was sufficient evidence on which a jury could be reasonably satisfied that Sydney's Waverley Council had been negligent.

In May 2002, a NSW Supreme Court jury found the council responsible for injuries suffered by Mr Swain, then 24, who hit his head while swimming between surf life saving flags at Bondi Beach on November 7, 1997.

It found the council was negligent because flags had been erected where there was a sand bank, and no warning signs alerted swimmers about the bar.

The council was ordered to pay out $3.75 million.

But in April 2003, the NSW Court of Appeal overturned the decision.

Mr Swain then turned to the High Court, arguing the Court of Appeal was wrong in ruling no reasonable jury could have found the council liable for his injuries.

On Wednesday a majority of the High Court found it was open to the jury to accept Mr Swain's version of how he was injured.

It was also open to the jury to conclude that in placing the flags, the council should have exercised reasonable care to prevent injury to bathers.

Whether or not the risk posed by the sandbar was obvious was a question of fact and it was open to the jury to conclude that the sandbar was a concealed hazard, they said.

FULL JUDGEMENT: http://www.austlii.edu.au/au/cases/cth/high_ct/2005/4.html
-----------------------------------------------------------------------------------------------------

i remember this case from a while back, i thought the man who jumped in was drunk?? shouldnt that have some bearing on the matter

 

[SashatheMan]

mmm 3 million dollars. can u buy yuor health back with that money?

 

[sped_kid01]

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

 

[Cape]

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

Yeah, its pretty much common sense that something could happen if you dive into waves.

 

[CrashOveride]

Hah 3 million...so what...even if it was 3 billion
He is never going to be able to use his arms or legs again.

 

[Generator]

It does seem unfair that the council was considered as being negligent for trying to determine the safest possible area for swimmers within a dynamic natural zone, but that's life.

 

[MoonlightSonata]

Though by doing something rather than nothing they may assume a responsibility

If there are no flags one might not be led into believing that it is a safe place to swim

The whole thing seems like a horrible affair though

 

[tennille]

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

I agree. How could you sue the coucil for a sand dune being in the way? Its a beach. What do you expect? The council shouldn't take responsibility for what the waves do to the sand. People already know that the floor of the beach is very unstable (different depths and all).

 

[Lazarus]

the guy should take responsibility for his own actions

He did, to an extent - the jury decided that he was 25% contributorily negligent.

I agree. How could you sue the coucil for a sand dune being in the way? Its a beach. What do you expect? The council shouldn't take responsibility for what the waves do to the sand. People already know that the floor of the beach is very unstable (different depths and all).

The council had placed flags on the beach around the location of the (allegedly concealed) sandbar. It was argued that this "encouraged" swimmers to believe that the area was one in which it was safe to swim. It was also argued that the flags could have been placed elsewhere, in a safer location, where there was no sandbar - but the council didn't produce any evidence on this submission, so the point was left uncontested.

With a civil jury consisting of four members of the public and a quadriplegic plaintiff, it's really not surprising that they awarded damages in his favour (even if they were reduced by 25% for his contributory negligence).

If you were sitting in a court room as a member of the jury, and a 24-year-old swimmer - who is now a quadriplegic for the rest of his life - retold his story to you... how sympathetic do you think you would be? It's not an easy decision to make.

After hearing something like this:

The appellant gave evidence (supported by the evidence of Mr Wilson) that he had entered the water between the flags. He said that he had waded into the water in the normal way. About 15 metres from the beach, he saw a wave coming and decided to dive through it. The water was waist deep or a little higher. He described the dive that he executed as one "through the wave". The next thing he felt was an inability to move and a lot of pain. He was immobile, floating face downwards. Eventually, he was rescued, Mr Wilson helping to take him to the beach. An ambulance was summoned just before 5 pm. Mr Wilson and Ms Galvin stayed with the appellant, greatly upset by his predicament, until a helicopter took him away to hospital. There, his spinal injury was confirmed.

It would be hard to say: "Bad luck. Go home. You don't deserve any money."

 

[Grobus]

He did, to an extent - the jury decided that he was 25% contributorily negligent.



The council had placed flags on the beach around the location of the (allegedly concealed) sandbar. It was argued that this "encouraged" swimmers to believe that the area was one in which it was safe to swim. It was also argued that the flags could have been placed elsewhere, in a safer location, where there was no sandbar - but the council didn't produce any evidence on this submission, so the point was left uncontested.

With a civil jury consisting of four members of the public and a quadriplegic plaintiff, it's really not surprising that they awarded damages in his favour (even if they were reduced by 25% for his contributory negligence).

If you were sitting in a court room as a member of the jury, and a 24-year-old swimmer - who is now a quadriplegic for the rest of his life - retold his story to you... how sympathetic do you think you would be? It's not an easy decision to make.

After hearing something like this:



It would be hard to say: "Bad luck. Go home. You don't deserve any money."

You dont get compensation for going through a bad experience and having a sad story to tell. You get compensation because someone has put you in a position where you have lost money and its their fault.

Its the jury's job to decide who is at fault and how much at fault, not whether or not what he went through is bad.

 

[Not-That-Bright]

Where is it to end tho?

 

[MoonlightSonata]

Its the jury's job to decide who is at fault and how much at fault, not whether or not what he went through is bad.

Yes certainly, though I believe the point is that it would be difficult not to be influenced by the extent of the injuries

 

[OZGIRL86]

I agree. How could you sue the coucil for a sand dune being in the way? Its a beach. What do you expect? The council shouldn't take responsibility for what the waves do to the sand. People already know that the floor of the beach is very unstable (different depths and all).

exactly...

 

[inasero]

yes the flags are there to indicate a safe swimming envoriment, However, they're meant to indicate areas where dangerous rips are not persent, not to designate safe head first diving zones.

If I was in the jury i would be sympathetic... but as Bob Carr said- "What happened to the days of personal responsibility?". So I would have to dismiss this guy...

 

[katie_tully]

you cant legislate against stupidity.

 

[LadyBec]

...people scream out at the unfairness of the payouts until they are hurt. That people should take responsiblity for their actions!!! Until of course they are subject to a case of marginal negligence which has caused substantial damage.

Wiithout such cases there would be very low standards of safety on almost all things we come into contact with. Without negligence cases there would ALOT of negligence behaviour going on out there that would put your life in danger.

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

 

[LadyBec]

Obviously the council has a Duty of care to ensure those who use areas are not hurt. He was partly negligent but the council was negligent.
Can you think of things you do volentarily that are risky...however are not risky because someone has taken care of the safety?

You can't blame the council for eveytime you get hurt on public property. It's about balance, between their duty of care to you, and resposiblitity for one's own actions, and common sense.

Can you think of things you do volentarily that are risky...however are not risky because someone has taken care of the safety?

yes, but if I take care of my safety too... Like in this case, I would never have jumped into a wave without making sure that there was no sandbar or anything.
I'm not saying the council isn't responsible, simply pointing out that it's just as much his fault, which is pretty much what was decided in the end anyways.

 

[Riewe]

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.

As for taking action for his own stupidity, i don't think he was stupid, as it is a very common action to dive under a wave if you can't float over it or take it for a ride. This action isn't taking a risk. It is just another 'rule of the surf' so to speak. It was not an out of ordinary action. If told of the sandbar, then he might've still decided to dive under the wave anyway, but at least the lifesavers told him of the risk, and he performed this action knowing about the dangers. But when you swim between the flags, without other warning signs, then you are led to believe that it is safe where you are.

 

[Not-That-Bright]

so are we to no longer have flags?

 

[glycerine]

ok, what if, say, one day you're at the traffic lights and the little green man comes up... but for some reason the signal is fucked and this car comes racing through because they see a green light, knock into you and paralyse you... does the council have any degree of responsibility here because they failed to repair the broken signal to the traffic lights? or should you have watched where you were going?