Jade Carter had driven through the roundabout and collided with the rear of the 9 tonne bus before ricocheting onto the median strip. Foster sustained a neck and back injury by “holding the steering wheel trying to control the bus to make sure it didn’t come out of control”. The impact was recorded on CCTV footage in the bus. Rather than the “very heavy” impact that shunted the bus at least “half a metre” sideways alleged by Foster, the video showed her “moving slightly in her seat and steering the bus closer to the curb before stopping”.

According to Justice Debra Mullins in Queensland’s Supreme Court, “the movement of the bus and the plaintiff’s immediate reaction” was indicative only of “a slight shudder”. Shaken, her neck pain started quickly and lower back pain developed later that night.

Foster visited her GP frequently over the following weeks and was referred to physiotherapy and hydrotherapy. The 50-yr-old already had a significant prior shoulder injury and some spinal degeneration.

Justice Mullins concluded that Foster’s “own perception of the limitations she suffers” far exceeded that established by the medical opinion. Because of such “obvious exaggeration” Carter’s CTP Insurer argued future economic loss damages should not exceed $75k. Justice Mullins disagreed that such a low figure should apply and went on to order loss of earning capacity damages on the basis that any return to work during the remaining 10 years of her working life was very unlikely .

The award after discounting was a total of $270k for that 10 year period calculated on the basis of $980/week net lost.

The accident occurred while Foster was driving the bus in the course of her employment. She received workers compensation payments. She thus contended for damages at common law rather than as confined by the Civil Liability Act, arguing she fell within the CLA s 5(1)(b) exception. The court had difficulty with that proposition. “The plaintiff’s statement of claim is a classic pleading for injuries sustained in a motor accident,” the judge wrote in her 20 page judgment. “There is no pleading of any circumstances that can be characterised as the ‘exigencies of the employment of the worker by the employer’ ”.

Concluding that a common law assessment was not open, the court went on to award general damages at just $21k. Neurologist David Johnson assessed her accident related whole person impairment at 6% for her cervical spine and a further 6% for her lumbar spine. His colleague Dr Weidmann disagreed, returning zero assessments for both in alignment with occupational physician Tim Anderson who considered the injuries to be largely related to her “very poor lifestyle with her smoking, being overweight, very deconditioned and with a lack of reasonable physical activity.”

Orthopaedists John Walters and Paul Pincus concurred at 5% for the cervical spine and 1% or less for the lumbar.

In the face of those diverse opinions, the court adopted Dr Johnson’s 6% for the neck injury but attributed a nought to the lower back complaint. She also allowed 6% for an adjustment and pain disorder as attested by both psychiatrists, Petros Markou and John Chalk.

The plaintiff’s care claim, $18k for past care and $45k for the future,  was also allowed making up a total award of $540k.

The post Foster v Carter & Anor [2017] QSC 135 Mullins J 28 June 2017 appeared first on LAW QLD.

Jackson had been attending a seminar on neuro-linguistics, the behavioural science made popular by motivation guru Anthony Robbins. On her return to the Gold Coast she underwent a medical review that identified a fracture of her left ankle, fractures in her left foot and damage to the sural nerve. That put her in a moonboot and on crutches until October and her recovery was marred by considerable pain and numbness in the foot.

In January 2013 as she was leaving her bed to attend to her 4-yr-old daughter, she stumbled and crashed to the floor striking her head. She was revived from her unconscious state after about 10 minutes by her ex-partner who had arrived at the home. He arranged she be taken immediately to Pindara hospital for treatment for headaches, blurred vision, vomiting and pain.

Jackson sustained to further falls in September 2015 and November 2015 that resulted in ambulance transfers to Pindara emergency. On the first of those occasions she was admitted suffering vomiting, diarrhoea, dehydration and convulsions.

The November admission followed a collapse in the Gold Coast court complex in connection with family court custody proceedings. The judge in those proceedings ordered comply with a previous direction to undergo hair follicle, drug and alcohol testing. After that incident, her driver’s licence was also suspended pending epilepsy investigations, a condition of which she was cleared.

When her hotel foyer claim eventually came before the court, her legal team contended the Bayview Boulevard should be responsible for the consequences of all the falls. The case against the hotel came before Justice Joanne Harrison who accepted that the first fall resulted in chronic pain in Jackson’s left foot as a direct result of the hotel’s negligence. It should have taken swift measures to prevent water puddling on the foyer’s terrazzo surface.

Evidence in the form of a written statement from the former Front Office manager that at least three “slippery when wet” signs had been deployed in the lobby and no similar falls had been recorded prior to the incident, was dismissed as unreliable. At least three others had fallen during the same event as Jackson!

Medical evidence concluded though there was no permanent injury sustained from head strike in the second fall and that Jackson’s other symptoms were “overwhelmingly unrelated” to the hotel fall in July 2011.

Justice Harrison assessed damages in respect of the Bayview Boulevard incident only. Judgement was entered in Jackson’s favour in the total sum of $95k.

The post Jackson v KAH Australia Pty Ltd t/as Bayview Boulevard Sydney [2017] NSWSC 747 Harrison AsJ 23 June 2017 appeared first on LAW QLD.

Both versions can’t be right.

Ashley Brown claimed the Hyundai 4WD turned in front of his motorcycle when he was “only a car length or two away”. This was at odds with the recall of Robert Holzberger who was travelling from the opposite direction and did not see the Kawasaki Ninja 650cc motorcycle before he commenced his turn into Reddan St.

Brown sued Holzberger for the consequences of his serious injuries, including a below knee amputation of his left leg.

When the matter came before Justice McMeekin, Mr Holzberger version was corroborated by a retired policeman and his daughter who saw no motorcycle within the distance of about 80m after they stopped at the intersection, waiting for the 4WD to turn.

Both thought it “had ample time to make the right hand turn”, but how could that be if Mr Brown were riding his motorcycle along Walker St towards the Reddan St intersection at just 60kph?

Unfortunately for Mr Brown, he had been observed just moments earlier by a “very experienced motorcyclist” travelling in the same direction speeding off from stop lights at the two preceding intersections to a speed of about 80kph and zigzagging to warm up his tyres. The occupants of another car he passed just 50m private intersection swore he overtook them “like a bullet out of a gun, barely 2 seconds” before the collision. Other factors taken into account were Brown’s Facebook “boasts to friends about driving inappropriately on the road” and his disregard for road rules evident from four prior speeding fines.

It was open for the court to find either that the accident was caused by Mr Brown’s excessive speed or by Mr Holzberger’s “staggeringly incompetent” looking out. Not unsurprisingly the court reasoned it was most likely Mr Brown’s excessive speed.

That’s why Mr Holzberger hadn’t seen the bike before starting his turn and why Mr Brown had insufficient distance in which to stop or swerve after seeing the turning vehicle.

The court went on to take a precautionary assessment of damages in the total sum of $892k including loss of future earning capacity for the 23-year-old at $500k.

The post Brown v Holzberger [2017] QSC 054 ; [2017] 16 QLR (16/5) McMeekin J 12 April 2017 appeared first on LAW QLD.

Mr Thoung, returned to casual work at BWS liquor store in Richlands just 4 days after the accident for much the same number of hours that he had previously done, prompting the insurer to contend the facts could not sustain any income loss claim.

In reality, Mr Thoung, was after the accident selective in his shifts, avoiding those on days with incoming stock arrivals so as not to be required to perform repetitive lifting of more than 200 liquor cartons on each occasion. The CTP Insurer’s suspicions were further provoked by his supervisor’s questionnaire responses indicating Mr Thoung, had returned to “full duties” and was working satisfactorily.

The supervisor Steve Wilmott in Court explained he knew the plaintiff from high school and later employed him at BWS. The Plaintiff, reported his accident to him as he did the pain in his lower back and neck requesting not to be rostered for heavy duty days where possible. Disappointed the change in the testimony, the CTP Insurer pressed Wilmott who explained he gave a “satisfactory” description because the claimant was adequately performing the less arduous jobs assigned, not the jobs that he had previously been able to do prior to the accident.

Unaware whether BWS had any formal modified duties scheme, Mr Wilmott changed the roster to accommodate the Claimant’s reduced capacity to work on heavy delivery days.

The CTP Insurers argument rejected by the Court at which point the CTP Insurer questioned the neurosurgeon Dr Campbell and orthopaedic surgeon Dr Wallace for their failure to painstakingly follow every recommendation in the AMA guides relating to their medico-legal assessments. District Court Judge Searles was unimpressed by Dr Fitzpatrick orthopaedic who attacked the pair for failing to use an inclinometer and failing to mandate warmup exercises prior to their clinical examinations of the claimant.

Dr Fitzpatrick agreed the device is not used in clinical practice and that experienced practitioners can assess range of motion impairments without an inclinometer. She insisted though, its use was valuable for standardising motion impairment assessments and ranges from one practitioner to the next. “A complete waste of time,” was how Dr Campbell considered the device “because it cannot measure anything in the spine.” He also observed that the author of that section of the AMA guides was not a spinal surgeon.

Drs Campbell and Wallace also considered the recommendation that assessment candidates be required to perform repetitions of extension, flexion, lateral venting and rotational exercise would probably make patients worse than better by the time they leave the examination. They found a decreased range of movement of 20% to 30% in all directions. They also allowed an uplift in the ISV by application of chapter 18 “by default”, because no other section of the AMA guides was applicable to cover the patient’s additional deficits.

Judge Searles noted schedule 3 of the Civil Liability Regulation section 12, requires a court to “give greater weight to a medical assessment of whole person impairment specifically based on the criteria for the assessment of whole person impairment provided under AMA 5 than to a medical assessment not based on that criteria”.

Ruling against the CTP Insurer criticism launched at the pair in respect of the method of assessment, he concluded “their assessments were substantially in compliance with the criteria set out in the AMA guides”.

Damages were assessed at $128k including $100k for impairment of earning capacity in the future as submitted for by the plaintiff.

The post Thuong v Liu [2017] QDC 196 Searles DCJ 19 July 2017 appeared first on LAW QLD.

In February 2012 she had been heading south on the Bruce Highway towards Townsville when she saw the approaching headlights lights of a Toyota land cruiser speeding towards her on the wrong side of the road. She took evasive action but the preceding Mitsubishi collided in “an explosion” with the northbound 4WD.

Toni pulled over and went to assist. The driver of the Toyota died at the scene. She provided assistance to the occupants of the other car. She reported to work the next morning as normal and continued her duties to June 2015 without so much as a day off work. As a clinical audiologist, she was required to travel by car to regional centres throughout Queensland.

On receipt of advice from a lawyer she eventually consulted in late 2015, she began a claim for compensation for the resulting loss of income.

Because she did not commence legal proceedings within the required 3 years from the date of accident. She was required to bring an application for an extension of the limitation period based on the discovery of a material fact of a decisive nature, and had 12 months to bring the necessary application was required by the relevant legislation.

Suncorp’s opposed the application for an extension of time.

Her GP had after all prescribed antidepressants and told her she had post-traumatic stress disorder as early as 2013. She also had 8 face-to-face sessions with a counsellor. While some of the stress was work-related, including an increased road travel requirement, Birch was aware that she was “still feeling affected by the fatal accident”. The court accepted though, that it wasn’t until May 2015 that it became clear that things, stress headaches, disturbed sleep and heart palpitations, were getting worse rather than better.

An admission to emergency in June due to chest pain excluded heart attack but was indicative of hypertension.

And it wasn’t until July 2016 that Birch attended her first consultation with a psychologist who diagnosed aggravated post-traumatic stress disorder relating back to the accident to February 2012.

She resigned her position in August 2015,  after realising she could no longer continue, but not before witnessing a further highway accident while travelling for work. She pulled over to the side of the road “crying uncontrollably”.

It was those two events around July 2016, realising she couldn’t continue her job; and the PTSD diagnosis, that she contended were the new material facts that alerted her to the possibility of a viable personal injury claim.

Judge Stuart Durward of the District Court in Townsville agreed.

Her continuity of employment until then and relatively minimal expenses meant that the cost of bringing proceedings would have outweighed any benefit from damages that might have been recovered. But the loss of her weekly pay packet and the adverse development of her psychiatric condition at that time put her into a “quite different” position than before, making out the necessary elements to fit the statutory limitation extension test.

Suncorp claimed the extension should nevertheless be refused because of “prejudice”. It contended the “delay in bringing the proceedings had caused an irreparable element of unfairness and prejudice which could not be cured”.

That argument was rejected and the time extension granted.

The post Birch v AAI Limited [2017] QDC 066 Durward SC DCJ 21 March 2017 appeared first on LAW QLD.

Likewise, minor stairway design deficiencies are usually excused if a fall originates in that way. Especially in the absence of prior injuries at the location.

What then of a fall caused by misplaced footing on concrete hospital fire stairs with a minuscule differential in riser height?

That question fell for determination by the Queensland Supreme Court in adjudicating the workplace injury claim of 27-yr-old physiotherapist Amelia Covey, injured on the fire stairs of the Charters Towers Hospital in May 2010. The elevator that operated between the ground and first floors of the hospital was slow. That and a “walk at work” campaign that encouraged personnel to reach 10,000 steps daily, meant many staff including Covey took the stairs a few times each week instead of the lift.

On the second flight of five that ascended to level two, Covey’s right shoe “just clipped the third tread from the top”. As a result of her misplaced footing, she lost balance and as she grabbed the hand rail her left arm “was yanked backwards”.

Surgery in April 2011 to repair a tear in her left bicep tendon and to decompress her left shoulder, left her with severe pain and a nerve disorder. The front and left side of her neck “felt they were on fire with a burning pain” that also shot down her left arm and brought on severe headaches. The physio’s subsequent frozen shoulder condition and the chronic pain that in turn led to a major depressive disorder required the intervention of a pain specialist.

The ensuing injury compensation lawsuit finally arrived before Justice David North in the Townsville court five years later.

Four days of testimony was dominated by descriptions of the physical characteristics of the stairway, its usage and argument over the extent of the hospital’s duty to make it safe. Both safety engineers, Roger Kahler for Covey and Frank Grigg for the hospital, reported a variation in riser dimensions in the stairwell. They also both recorded that the greatest variation in height of the risers occurred exactly where Covey claimed to have tripped or stumbled.

While engineer Grigg disagreed with Kahler over the application of an Australian Standard to that location, he conceded that consistency in riser heights was at least “recommended practice” because “for decades” it was well-known that even small height variations escalated injury risks to persons ascending or descending stairs.

Against that background Covey argued that the hospital was negligent for failing to take measures such as topping the treads with concrete or capping the noses of each tread to equalise the height variations. The hospital on the other hand argued there was no evidence that the stairs were unsafe for the purpose for which they were designed, namely for emergency use; and there was no evidence that implementing either of the suggested measures would have avoided the fall.

Justice North acknowledged the force of the hospital’s argument in usual circumstances. But in the context of the both safety engineers’ testimony “the compelling conclusion is that the stairs constituted a danger because of the trap inherent in the riser height inconsistency,” he reasoned “making it difficult for someone walking up or down to judge the placement of feet”.

The well-known usage of the emergency stairs by staff in lieu of the lift – particularly in the context of the 10,000 exercise awareness campaign – commanded management to have “turned its mind to the safety of the stairway” or have them examined by a competent expert or even “an intelligent layman”. The significant inconsistency in the height of successive risers in these circumstances was a “hidden trap” and an accident was only a matter of ‘when’ not ‘if’.

That there were no prior serious accidents was irrelevant. “The frequency of use in the absence of accidents can speak eloquently for the safety of a stairway but this is not such a case,” he recorded. “Here there was a latent danger”.

Having decided that the hospital was liable Justice North heard from numerous medical specialists who expressed “at best a guarded hope” for any improvement in her condition.

He concluded Covey would continue to suffer a lifetime loss of left arm function and significant debilitating pain that “destroyed her capacity to work as a physiotherapist and into the future”.

He assessed income loss past and future at $1.2 million, out of a total assessment of $1.76 million.

The post Covey v State of Queensland [2017] QSC 023 North J 27 February 2017 appeared first on LAW QLD.

In emergencies, an ambulance boat is used to collect a paramedic from Russell Island to the South to open up a shed adjacent to the loading dock where an ambulance vehicle is warehoused until needed.

In heavy rain and blustery conditions in January 2012, just such an emergency brought the visiting paramedic to the home of Moyra Roane-Spray, 35 minutes after callout. Suspecting a stroke, the attending ambulance officers decided to convey 66-yr-old Moyra to the dock for boat transfer to Redlands Hospital. Moyra managed to walk down her front stairs with the assistance of her husband and son who held an umbrella over her until arriving at the rear door of the vehicle when she was placed on a stretcher.

On arrival at the dock as the QAS officer began pulling the stretcher through the rear doors of the vehicle. Just as he did, a wind gust blew the lightweight silver blanket, that had been placed over the patient to protect her from the rain into the ambulance officers face. While the officers face was impeded he kept pulling the stretcher but instead of the legs of the stretcher automatically unfolding as the head end emerged, it crashed to the ground.

Despite Moyra “screaming out for him to stop” the paramedic kept pulling, she later alleged. The officer then rushed back to lift up the stretcher and locking the inboard legs into place.

Although there were no eyewitnesses, Moyra’s neighbour was at the landing waiting for a ferry. Seeing the ambulance, she walked out the shed and held her umbrella over the patient before realising who it was. The neighbour, Ms Taylor, said Moyra “kept repeating that she had just fallen and hit her head”. She also recalled the paramedic having said, on seeing Moyra becoming agitated when the stretcher was about to be transferred from the jetty to the boat, “it’s okay, it is fixed, it won’t happen again”.

An uneventful crossing of 15 – 20 minutes preceded a mainland ambulance crew taking control of the transfer.

They made a note that the patient was complaining about headache which they assumed to be related to the suspected stroke.

The Redland’s Hospital doctor who examined her recorded “head/neck trauma while being transported from the Island. While the patient was coming out of the ambulance she was on a stretcher. The front stretcher legs did not engage and she went down. No discomfort initially, but is complaining of cervical spine tenderness.”

The pain worsened to include the lumbar area and “straight leg raising was restricted”.

The patient later sought compensation for the serious back injury sustained.

The QAS acknowledged that the legs did not deploy but denied the resulting medical condition was a result of its officer’s actions. It claimed the head of the stretcher had only dropped onto the ambulance step.

His Honour Judge John McGill however considered that account unreliable. Pulling the stretcher out in the way that he had done constituted negligence on the part of the officer for which the ambulance service was responsible, he ruled. Despite this, the QAS claimed Civil Liability immunity pursuant to CLA section 27 in that it was an act performed by an entity that “provides services of public safety in the course of rendering first aid or other assistance to a person in distress” because the act was done “in good faith and without reckless” conduct.

The defence was ruled inapplicable as, despite the QAS being a prescribed entity for the purpose of section 27, paramedics are not its employees but rather are State personnel.

Injuries diagnosed included the serious aggravation of pre-existing degenerative spinal conditions that dramatically reduced her mobility and independence.

Total damages of $558k included $488k for past and future care, showering, dressing cooking, housekeeping, laundry and gardening totalling 19 hrs/week, for Moyra’s remaining 20 years of life expectancy.

The post Roane-Spray v State of Queensland [2016] QDC 348 -McGill SC DCJ/21 December 2016 appeared first on LAW QLD.

The specialist pipeline welder denied he had 3 more drinks on the flight but accepted he drank a “coffee cup of whiskey and coke” poured for him by his travelling companion from a duty-free bottle purchased at the airport. According to witnesses, on arrival at Brisbane shortly before 5 pm, his speech was slurred, “his face was red, his eyes were bloodshot and watery and he appeared unsteady”.

As passengers deplaned via stairs to the tarmac, ground staff intercepted him to ask that he and his companion wait while they spoke to the crew concerning his on board conduct. Two Border Force officers arrived to be followed by three Australian Federal Police about 10 minutes later. Parker was required to stay put while one of the officers boarded the aircraft to interview crew.

On his return, Barker, who had a negative reaction to the AFP representatives’ arrival, unleashed a torrent of abuse and threats resulting in a decision that he be arrested.

The arrest, was effected by Sgt Gary Turnbull taking hold of his right arm and officer Chris Denyer the left, forcing him to the ground before cuffing his wrists behind his back. In the course of that manoeuvre, Barker’s left leg and ankle were injured to an extent that necessitated police driving him to the Royal Brisbane Hospital for treatment.

Barker did not challenge the officers’ entitlement to make an arrest but alleged his detention at the foot of the stairs leading from the tarmac to the terminal prior to that time was unlawful and that the force used during the takedown manoeuvre was so unreasonable it constituted an assault.

The recovery from his broken leg and 2 surgeries to his ankle to repair a displaced ligament required extensive rehabilitation and resulted, he claimed, in a serious impact on its capacity to carry on his business.

The lawsuit was defended by the Commonwealth of Australia as the party responsible for the conduct of Border Force and AFP personnel.

When the matter came before Brisbane’s Supreme Court 5 years later, Turnbull and Denyer testified that Parker “immediately resisted” by “wildly trying to escape their grip”. Barker’s account was that there was no resistance only that he arched his back as his approached the bitumen, to unsuccessfully avoid the head strike that left him groggy afterwards from the impact.

Unfortunately for Barker, treatment records from his numerous medical consultations over the next few weeks referred to him having no memory of events from top of descent as the aircraft began its arrival into Brisbane.

Although Justice David Jackson thought Sgt Turnbull’s evidence “was disconcertingly given in long rehearsed answers” but as it did not contradict that of other defence witnesses the inevitable unreliability of his recollection meant that Turnbull’s account was preferred over that of the passenger.

Taken with the weight of evidence from all other witnesses at the time of and shortly before the arrest, the court was compelled to a conclusion that the takedown was reasonable and did not involve excessive force. Thus no assault had occurred.

While the period of detention prior to the arrest was capable of being an “unlawful imprisonment” entitling Barker to compensation, “all the witnesses apart from the plaintiff swore that upon being requested to remain on the tarmac, the plaintiff did so voluntarily”. In the absence of any contention that Barker insisted on being able to leave after being “told to remain on the tarmac and to sit down”, Justice Jackson concluded “there is no serious case of false imprisonment in these facts”.

Interestingly, Barker’s arrest was for “disorderly conduct” rather than failing to observe a direction of the crew while on board the flight.

The post Barker v Commonwealth of Australia [2016] QSC 310 appeared first on LAW QLD.

An argument was sparked by the trio’s banter over the route chosen by the taxi driver that soon followed, according to the driver in the form of repeated deeply offensive racist taunts from a person with a Scottish accent.

The incident has been the source of litigation by Hamilton, a Gold Coast property developer, against NSW police for assault and wrongful arrest. In 20 pages of written reasons following a 10 day trial, the court concluded that because Hamilton was a Queenslander, it was unlikely that he had been part of the argument with the driver over the chosen route.

Although found by the judge not to be “possessed of a broad Glaswegian accent”, Hamilton’s “intoxicated disinhibition” and a “memorable holiday in the land of his birth some months earlier” likely caused the 61-year-old to emulate a highland brogue in a taunt of the driver. It was he too who the driver alleged had repeatedly pushed him in the back of his head with an open palm.

Spotting two police officers as the taxi came along George Street, the driver quickly pulled over and ran to them for assistance.

In just as quick time Hamilton exited the vehicle, allegedly with a guilty purpose to evade arrest at Grosvenor Place near the Brooklyn Hotel to make his way to his co-reveller’s apartment on foot. The quicker of the two officers approached Hamilton from behind, who was already on the opposite sidewalk and without warning, rammed him into a concrete wall and then with a leg swing and the help of a “burly” colleague, downed him onto the pavement.

That violent episode saw the arresting police escort Hamilton to St Vincent’s Hospital for treatment for cuts to his face and broken ribs after which he was released without charge.

He was later prosecuted for resisting arrest and assaulting the taxi driver but both charges were withdrawn at the latest possible moment. Constable Middenhall was charged with assaulting Hamilton but acquitted.

In deciding Hamilton’s wrongful arrest claim, the New South Wales Supreme Court criticised both officers for not attempting to detain their suspect in a peaceful manner to obtain his version of events and to form an opinion if he was a person of danger. “Grabbing a person from behind is calculated to extract a startle response introducing tension or even fear to the encounter,” ruled Justice Stephen Campbell. Rejecting the evidence of the policemen, the arrest was ruled unlawful because “the force used was unnecessary and done out of indifference to Hamilton’s right to be at liberty with neither officer genuinely believing him to be dangerous”.

The court also ruled after the 16 day trial, that being held against his will from 11:45pm until 3:30am the following morning was an “unlawful imprisonment”. His prosecution was “malicious” in that Constable Middenhall put forward false material to support charges that were eventually dismissed.

How should compensation be assessed

Although not actively developing in December 2009, Hamilton had resumed his work with the assistance of his daughter.

Accepting “that successful capitalism depends upon entrepreneurial flair, the ability to think quickly and creatively” and that he was the “engine driving” the business, a global sum of $120k was allowed for future loss of earning attributable to his significant PTSD condition making up part of a wrongful arrest damages of $541k. A further $8k was allowed for the 3 hours 45 minutes of unlawful imprisonment including at St Vincent’s Hospital most of which time he had been kept in handcuffs. Finally a further $20k compensatory and $10k exemplary damages were awarded for the malicious prosecution.

Total award $582k for a night out that Mr Hamilton would surely prefer to have ended in a much different way.

The post Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 Campbell J 16 September 2016 appeared first on LAW QLD.

As he was opening a screen door to reach the handle of the front entry to make his exit, his left foot went out from under as he placed it on the inside mat. Unable to recall precisely
the material on its underside and unable to gain access to the premises to find out for sure, he resorted to the local hardware warehouse to take photos of mats he believed it most
resembled.

On the basis of those pictures, depicting mats with fabric or sisal backing, safety engineer Justin O’Sullivan prepared an expert report identifying a potentially high risk of injury if
they were employed on a timber floor.

Valentine sued, contending his employer (Masters Painters) and Q Build should have identified the mat as a potential hazard and taken steps to protect him from it.

Both Masters Painters and Decorators Pty Ltd and Q Build denied liability claiming the “shaggy pile” mat was not a hazard of which they had been aware.

When Judith Callaghan, the 26 year tenant of the Keperra residence, was finally informed about the accident several years later as the claim slowly made its way towards trial, she
revealed that the floor mat she customarily used was in fact rubber backed. And that she replaced it every two years or so. Thus was her testimony when the lawsuit came before
Judge John Robertson in the Maroochydore District Court when she also swore that no one to her knowledge, had ever slipped at the door.

Mr O’Sullivan’s coefficient of friction calculations – based as they were on the wrong type of mat, were unfortunately irrelevant and he was forced to concede in the witness
box that a rubber backed device was the preferred matting to be used on a timber surface.

But ought Masters or Q Build have identified the floor covering as a hazard?

Mr Masters inspected the property when he quoted for the job and another employee had prepared a risk/safety statement from information he and Q Build supplied. Neither source
identified any mat associated risk and the “safe work method statement” made no mention.

In Judge Robertson’ view, even if Mr Masters had noticed the mat, it would not necessarily, to him, have represented any risk. And had any inspection been carried out, the mat would
have been found to be exactly the type recommended by the expert engineer.

Valentine himself had walked over the mat on at least three prior occasions previously. Had he considered it a risk he could easily have removed it.

Based on all those observations, the court ruled the risk of injury was not foreseeable and notwithstanding a serious injury had been sustained, the painter’s damages ask should be refused.

The post Valentine v D & C Masters Painters & Decorators P/L [2016] QDC 203 Robertson DCJ 11 August 2016 appeared first on LAW QLD.