All posts tagged: public liability

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What is a trip hazard?

What is a trip hazard?

Case note: The Thistle Company of Australia Pty Ltd v Bretz & Anor [2018] QCA 6

A service station owner has been unsuccessful in its appeal of a decision of the District Court of Queensland to award $96,000 to a man who tripped on the plinth of a petrol bowser. The decision by the Queensland Court of Appeal provides some insight into what a court might consider a trip hazard to be in a public liability claim.

The accident happened in 2012, when the man was aged 80.

Background

Mr Bretz attended the service station and filled his van and 2 x 20 litre drums with fuel. He was unfamiliar with the servo but CCTV footage showed that he spent several minutes walking around the bowser area. As he was doing so, he was looking down and his feet were close to the plinth of the bowser at times. When he finished he ‘took off to walk around the bowser, and the next thing [he] knew [he] was heading for the bitumen’.  Mr Bretz tripped or lost his footing when the ball of his foot hit the edge of the plinth.

The petrol bowser was centred on a raised concrete platform or plinth. The plinth extended 30cm from the edge of the bowser and was 37mm – 39mm high. It was painted black just two weeks prior to Mr Bretz’s fall. Before that it was yellow. It was repainted because the yellow paint was wearing off and there had been customer complaints about the slipperiness of the plinths.

Mr Bretz brought proceedings in negligence against the service station owner, The Thistle Company of Australia Pty Ltd (the TCA). The TCA brought a claim against Tam Farragher & Associates Ltd (TFA), who designed the concrete plinth.

Mr Bretz succeeded in his claim in negligence against the TCA in the District Court. The TCA failed in its claim against TFA, who had an exclusion clause in their favour. The TCA appealed the decision to the Queensland Court of Appeal.

The Appeal

The TCA challenged the following findings of the District Court:

(1) the plinth was not an ‘obvious risk’;

(2) the risk was ‘not insignificant’;

(3) Mr Bretz was not contributorily negligent;

(4) TCA’s third party claim against TFA should be dismissed.

The finding that the plinth was not an ‘obvious risk’

The TCA argued that the trial judge ought to have found that the plinth was an ‘obvious risk’ within the meaning of section 13 of the Civil Liability Act 2002 (Qld) and that it had no duty to warn Mr Bretz of its presence. The Court rejected the TCA’s argument because:

(1) the repainting of the plinth camouflaged it;

(2) the rise of the plinth was only 37mm. It was ‘high enough to trip someone, but not so high to be immediately apparent’;

(3) the plinth was difficult to see because it was located close to where customers would park;

(4) the trial judge appropriately determined that the risk was not ‘obvious’ to a reasonable person in the position of Mr Bretz having regard to the shallow nature of the plinth, that it was an unusual feature of the site, Mr Bretz’s limited experience of the site and that it was camouflaged.

The finding that the trip risk was ‘not insignificant’ 

The TCA contended that the trial judge should have determined that the risk of tripping on the plinth was insignificant. Under section 9 of the CLA a person does not breach a duty to take precautions against a risk of harm unless (among other things) the risk was ‘not insignificant’.

There had been multiple complaints about the slipperiness of the original surface. The only complaint about the plinth after it was painted was the complaint by Mr Bretz. The trial judge found that there was evidence that others had tripped or slipped because of patterns of wear on the plinths.

The TCA argued that the trial judge conflated the episodes of complaint about slipperiness with that of tripping. The Court rejected the TCA’s criticism of the trial judge’s reasoning and noted:

(1) a customer tripping and falling at a service station was one of the business’s highest operational risks;

(2) there was no operational reason to make the plinth the same colour as the surrounding ground beyond the aesthetic. The removal of the visual cue increased the risk of falling, and with a risk of falling, comes a risk of serious injury;

(3) the very risk which eventuated was one which was identified prior to the incident;

(4) it was open to the trial judge to find that once the plinth was painted black, other patrons had stumbled or tripped on it.

No contributory negligence by Mr Bretz

The TCA complained that there should have been a finding that Mr Bretz was contributorily negligent because he was not looking where he was walking. The basis of the TCA’s complaint was that Mr Bretz’s own evidence suggested a cavalier attitude on his part, because in cross-examination there was this exchange: ‘Did you watch where you were walking?– No. Take off and walk’.

The Court was satisfied that it was open to the judge at first instance to find that Mr Bretz’s conduct was ‘mere inattention’ and so, no finding of contributory negligence should follow. The Court was satisfied with the approach of the trial judge and observed the submission made on behalf of Mr Bretz that, ‘as a general rule, pedestrians are not obliged to watch their feet to avoid unexpected obstructions as they walk’.

Dismissal of third party proceedings 

The TCA had a contract with TFA who designed the plinth. The contract contained an exclusion clause in favour of TFA which read:

‘After the expiration of one (1) year from the date of the invoice in respect of the final amount claimed by [the TFA] pursuant to clause 4, [the TFA] shall be discharged from all liability in respect of the services whether under the law of contract, tort or otherwise.’

The TCA alleged that if the plinth was a tripping hazard, it was because it had been negligently designed by the TFA. The trial judge found that the TFA was protected from liability by operation of the exclusion clause. On appeal, the TCA argued that the TFA should be liable because:

(1) there was no evidence that the period of one (1) year in the exclusion clause had expired;

(2) the TFA failed to ensure, through inspection, that the plinths were constructed in accordance with their design and this amounted to a breach of contract;

(3) the TFA’s liability did not arise ‘in respect of the services provided under the contract’ and therefore fell outside of the exclusion clause.

The Court dismissed the TCA’s complaint about the third party proceedings noting that this was not the TCA’s case at trial, that the TCA’s complaint was clearly ‘in respect of the services’ that had been contracted from TFA and finding that the exclusion clause operated to protect TFA from liability. There was no basis to doubt the trial judge’s finding that the one (1) year period under the exclusion clause had expired.

Considerations

This judgment will be of interest to business owners. In answer to the question of what a trip hazard is, some take away points from this case are that, in the context of a personal injury claim, a trip hazard might be one which has some of the following features:

(1) it is ‘high enough to trip someone, but not so high to be immediately apparent’;

(2) it is camouflaged by surrounding surfaces;

(3) it is hard to spot because of the presence of other objects;

(4) it has caused others to slip or trip on it;

(5) has been identified as a risk already by the occupier.

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Kate DenningWhat is a trip hazard?
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Pool tragedy caused by failure to warn of diving danger

Pool tragedy caused by failure to warn of diving danger

Case note: Lennon v Gympie Motel [2016] QSC 315

The Supreme Court of Queensland found the Gympie Motel 85% liable for injuries suffered by a girl who was rendered tetraplegic after diving into the Motel’s pool. The decision (delivered on 22 December 2016) is a timely reminder that businesses with pools and swimming facilities must take appropriate care for the safety of users. The judgment may also be used as a guide for businesses when considering the types of signage to display to adequately warn entrants of a risk of injury from diving.

The accident happened in 1998, when the girl was aged 12.

The Facts

On 21 February 1998, Karla Lennon, her mother and siblings stayed at the Motel. The family had not stayed there before.

The Motel had an in-ground pool. The pool was 10 metres by 5.2 metres, with an internal width of 4.5 metres. Its depth went from 0.9 metres to 1.74 metres. The pool was fenced.

There was a sign on the gate to the pool area which read:

‘Pool Rules

All children must be under adult supervision at all times, in pool area.’

On arriving at the Motel, Karla’s younger sister Letitia asked their mother if she could go swimming. The mother agreed and told Letitia that Karla would be in charge.

Letitia recalled that she and Karla were jumping in from different areas around the pool and gliding, to see how far they could each glide along. Letitia recalled other people present in the jacuzzi area of the pool and had a conversation with one of the people.

At one point a man said to Letitia, ‘…your sister is over there and she’s floating…’. Letitia told the man that Karla had done this before and that she was just playing a joke. The man left the pool area. Letitia realised that Karla was not responding. Emergency services attended. Karla suffered a ‘hypoxic brain injury secondary to immersion due to a cervical spine injury’.

Letitia (who was 7 years of age at the time) gave evidence about the circumstances leading up to the incident at the trial. There was no direct evidence at trial about the incident. Karla had no recollection of the event.

The Plaintiff’s Case

It was Karla’s case that:

(1) she knew not to dive into shallow water or pools in which she could not judge the depth;

(2) she intentionally dived into the pool, striking her head, and did not appreciate the depth of the pool;

(3) the Motel failed to warn her about the depth of the pool by having a ‘no diving’ sign or depth markers, or both;

(4) if the Motel had erected signage, warning users of the pool as to either its depth or that diving was prohibited, Karla would not have dived into the pool.

The Defendant’s Case

It was the Motel’s case that:

(1) there was insufficient evidence for the Court to conclude how Karla’s injuries occurred;

(2) the absence of depth markers or a no diving sign did not constitute a breach of duty because of the obviousness of the risk of diving into the pool;

(3) Karla was outgoing, oppositional and, even if a no diving sign or depth marker were present, she would have done exactly what she did;

(4) the foreseeability of any risks of injury were adequately addressed by the sign requiring adult supervision;

(5) Karla contributed to her own injuries.

The Judgment

Both parties led evidence about Karla’s character. The Court ultimately accepted submissions made on Karla’s behalf, that she was a responsible and mature child. In arriving at this conclusion, the Court took into account that:

(1) Karla had previously travelled by train, bus and water taxi to Stradbroke Island for 2 years prior to the incident, every weekend, during the school term and, without adult supervision;

(2) Karla worked in her mother’s second-hand store, serving customers, for up to three to four hours;

(3) Karla would travel with her father, who owned a trucking and logistics business, and she would take messages and write cheques; and

(4) Karla’s friend’s mother allowed Karla and her daughter to swim, unsupervised, at the beach.

The Court was satisfied, on the balance of probabilities, that Karla’s injuries were in fact caused by her diving into the pool and striking her head on the bottom of the pool. In arriving at this conclusion, the Court relied heavily upon the opinion of Dr Tuffley, who considered it was ‘highly probable, and certainly more probable than not’, that this was the cause of Karla’s injury.

The Court accepted that if the Motel had displayed a no diving sign, that Karla would have obeyed that warning. This was despite the fact that it was Karla’s evidence that she would have obeyed an instruction from her mother not to dive into the pool. Having regard to her character, the Court did not consider it was unreasonable for Karla not to be supervised by her mother in the pool.

The Court found that the duty of care owed by the Motel to Karla extended to take care for the safety of the persons using the pool and that the Motel breached its duty of care by failing to take the precautions (of displaying a no diving sign or a depth marker, or both) to warn guests who may misjudge the depth of the pool. Displaying the adult supervision sign did not discharge the Motel’s duty to the Plaintiff in this instance. The Court had regard to Australian Standards which state that, ‘[u]nless specifically designed for diving, private pools should not be used for that purpose’ and accepted the Plaintiff’s submission that there was no safe place to dive in the pool.

A deduction of 15% was allowed for the Plaintiff’s own negligence, having regard to the fact that while she was found to have dived in the deeper area of the pool and had been diving safely into the pool without incident for 10-15 minutes beforehand, she had a general awareness of the dangers associated with diving.

Considerations

This judgment will be of interest to pool owners and businesses with swimming facilities. The decision may be used as authority for the kinds of precautions that may be reasonably required of a commercial facility to address the risk of people diving into shallow water. However, it should not be taken as authority for the proposition that an absence of parental supervision will be superseded by an owner’s failure to warn of risks. The disposition of the Plaintiff was a key feature of the judgment in this case. There have been changes in the law since this incident occurred and similar circumstances, with a Plaintiff of a different maturity level, could produce a different result.

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Kate DenningPool tragedy caused by failure to warn of diving danger
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Making a Mandatory Final Offer in Queensland

Making a Mandatory Final Offer in Queensland

Compulsory Conference PIPA – Compulsory Conference Queensland – Compulsory Conference WorkCover Qld – Compulsory Conference Personal Injury

by Kate Denning Google+

Introduction

In Queensland, parties to a personal injury claim are required to make a ‘mandatory final offer‘ or ‘written final offer‘ (MFO). An MFO is made at the end of an unsuccessful pre-court Compulsory Conference in claims regulated by the:

Here are just some of the irregularities that can arise with MFOs in Queensland claims:

No Mandatory Final Offer

Cost consequences flow from an MFO. Any cost orders ultimately made will depend on: the amount of the offers compared with any judgment; the legislation regulating the claim; offers made during the litigation (except in WCRA claims); and, in limited circumstances, case building that occurs once the matter is litigated. To avoid the potential for adverse cost consequences, a party may agree to participate in settlement negotiations on an informal basis only, so that they are not required to exchange MFOs (or provide a Certificate of Readiness). In multi-party disputes, this strategy may be appropriate for a PIPA Respondent that has been joined to a claim late in the piece. Otherwise, a refusal by one party to have a level playing field with the others for no valid reason, is likely to impact settlement negotiations.

Offers inclusive of costs

Under the PIPA and MAIA, where an offer is at or below the ‘upper offer limit‘, parties are required to make offers which are exclusive of costs. Otherwise, parties are permitted to make MFOs which are inclusive of costs.  These types of MFOs should be made with caution.  Offers which are inclusive of costs have received unfavourable treatment by the courts. The difficulty with these types of offers, is that there’s no way for a court to identify from the MFO the amounts allowed for damages and costs.

Offers fixing an amount for costs

A Respondent may make an offer which fixes an amount for costs. The advantage of doing so is that, if accepted, the Claimant has agreed to an amount for costs and no further negotiations are necessary. However, where an offer fixes costs and that offer is rejected – a question might arise later on about whether the Claimant was justified in rejecting it because the allowance for costs was too low. As with offers which are inclusive of costs, these types of offers should be made with caution.

Offers between Contributor and Respondent

Under the PIPA, parties to a contribution claim are not required to exchange MFOs. However, under the WCRA, both Contributors and Respondents are required to make MFOs. The result of this is that for claims regulated by both the WCRA and PIPA, PIPA Contributors may choose to make no offer towards settlement during pre-court negotiations, as a matter of strategy. It may be in the interests of a PIPA Contributor to take a passive role in the claim and see if the other parties will reach a compromise without any offer from them towards a settlement. However, in a claim where a PIPA Contributor has significant exposure, this approach may simply compel the parties to litigate.

Joint MFOs

For claims regulated by the WCRA, costs only flow from the MFO. So, where a claim is regulated by the WCRA and PIPA, the Respondent and Contributor/s in the WCRA claim will be reluctant to make an MFO of $nil. The result is that at Compulsory Conferences there is more pressure on the WCRA parties, than the PIPA parties, to make an appealing MFO to a Claimant. Conversely, if a WCRA party has made reasonable attempts to resolve a matter during the pre-court stage, then they may be reluctant to co-operate with a PIPA party that is keen to negotiate well into the litigation.

Attaching a Release and Cost clauses

Care should be taken when drafting the MFO. If the MFO refers to a Release and a copy of that Release is not attached to the MFO, that may affect the validity of the offer. For claims under the PIPA and MAIA, where a Release is attached and there is otherwise no obligation upon a Claimant to sign a Release, a question may arise about whether the terms of the Release affected the acceptability of the Respondent’s offer. Consideration should also be given to the wording of any clause about costs in the MFO. Particularly if the MFO refers to costs being payable in anyway other than ‘in accordance with the’ relevant legislation regulating the claim.

Clash of the MFOs

MFOs are ‘exchanged’ and so parties do not usually know what offer/s will be made by their opponent/s. In rare circumstances, two parties may make MFOs to each other which are less favourable than the offers put to them.  For instance, Company X offers to settle a Claimant’s claim for $100,000 but the Claimant offers to settle her claim for just $80,000. Parties may attempt to address this by adding a clause to the MFO to the effect that the document serves as an acceptance of any offer that is less/more than the offer made by their opponent.

Expiring limitation period

A Claimant must commence proceedings within 60 days of a Compulsory Conference and cannot start those proceedings while the MFOs are open. MFOs must stay open for 14 days (10 business days for WCRA claims). There is no discretion under the legislation for that time to be abridged. So, for claims regulated by the PIPA and MAIA, a Compulsory Conference must be held no later than 10 business days prior to the expiration of a limitation period, to allow the MFOs to expire and the Claimant to commence proceedings.

Getting it right

There’s no set formula for getting your MFO ‘right’. However, each piece of legislation has its own nuances. It’s important to be familiar with the legislation that regulates both your claim AND your opponent’s. Adequate preparation before a Compulsory Conference will facilitate negotiations and prevent confusion between parties and their legal representatives when MFOs are exchanged.

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Kate DenningMaking a Mandatory Final Offer in Queensland
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Injuries from vibration or a sudden jolt

Injuries from vibration or a sudden jolt

Injuries from Vibration – Liability Claims Examples – Injuries from heavy equipment – Compensation pre existing condition – Injuries in Mining – Injuries in Coal Mining – Truck Injury Lawyer Blog – Truck Injury Lawyers – Truck Injury Compensation

In industries that use heavy equipment, claims sometimes arise out of vibratory forces or sudden jolts. Only a handful of Australian judgments have been delivered over the past decade in these types of cases. Some take away points from those decisions are as follows:

Previous complaints

In a vibration case, the number of complaints made about the equipment or the road surface will be relevant. For instance, in Robertson v Gillman Bros Mining Contractors Pty Ltd [2007] WASCA 36, the trial judge was not satisfied that the level of complaints suggested any wrongdoing by the Defendant because the complaints were ‘no more than would necessarily be expected and unavoidable in’ the harsh environment of underground mining.

Condition of equipment

The extent of any damage caused by a jolt, will be relevant to determining the impact force: Kelly v Humanis Group Limited [2014] WADC 43. In Kellythe Plaintiff’s dump truck was struck by a fully loaded excavator bucket. However, due to the limited damage to the Plaintiff’s dump truck, the Court concluded that the force of the impact was less than the Plaintiff described in his evidence.

For vibration cases, the condition of the seating, mirrors, suspension and any modifications to the equipment may also be taken into account: Russell v Hancock Farm Company Pty Ltd [2013] QDC 129. In Russell, the Court ultimately found for the Plaintiff because of the general condition of the equipment and the system of work and not because of the vibratory forces to which the Plaintiff was exposed.

Pre-start checklists, inspection and maintenance records, diaries, photographs and similar documents, will assist the Court, in determining the condition of the equipment.

Reporting of the incident

As with all personal injury cases, the timing of the Plaintiff’s report about the event will be taken into account. In Kelly, the Plaintiff’s failure to report the incident immediately afterwards (along with the limited damage to the dump truck) was a factor which led to a finding for the Defendant.

Pre-existing degeneration

The Plaintiffs in these cases often have underlying or pre-existing degeneration. The Defendant will bear the burden of proving that the Plaintiff would have suffered symptoms, regardless of the event. However, where the evidence can identify significant degeneration, substantial discounts can be made: Russell v Hancock Farm Company Pty Ltd.

Expert evidence

Expert liability evidence has assisted the Court in the cases mentioned above, in deciding issues such as:

  • the extent of the impact force from a jolt.
  • whether vibration could have caused injury.
  • the period over which an injury through vibratory forces could occur.
  • the condition of the equipment or road surface.

Summary

These kinds of cases are often complex and expensive to litigate for the parties. With claims arising in the mining, construction and agricultural industries, claims often involve multiple parties, disputes on liability and quantum, as well as cross claims in contract and tort. The cases that are contested, commonly involve questions about the Plaintiff’s credit and underlying degeneration.

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Kate DenningInjuries from vibration or a sudden jolt
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NSWSC finds for employer in step case

Case note: Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 435

Public Liability Case Law – Public Liability NSW – Public Liability Case Examples – Public Liability Case Studies – Public Liability Cases – Host Employer Responsibilities – Host Employer Duty of Care

Facts

The Plaintiff, Ms Vincent (Vincent), was a store merchandiser employed by Counterpoint.

As a merchandiser, her job involved product presentation, including the creation of promotional displays. Merchandisers display products according to a planogram (a plan/diagram prepared to make a product more appealing to customers).

Vincent was arranging products in a Woolworths store according to a planogram, with the use of a safety step.  A male customer was pushing his trolley down the centre of the aisle in which she was working.  He was not looking at Vincent, who was working to his right.  Vincent was on the step and concentrating on her task.  As she stepped down from the safety step, she collided with his shopping trolley.

CCTV footage showed that she looked to either side before stepping down but did not turn her head fully, in either direction, to check for customers.

Issue for determination

Vincent brought separate proceedings against Counterpoint and Woolworths.  Vincent argued that Woolworths and Counterpoint failed to take appropriate precautions against the risk of her suffering injury in the course of her work.

Woolworths accepted that it owed Vincent a duty of care but argued that it was the ‘bare’ duty of an occupier of premises.

Vincent said that Woolworths should have warned of the risk that she could collide with a customer, provided manual assistance or provided a ladder for her to use.

Findings

The Supreme Court of New South Wales made these findings:

  1. Woolworths owed visiting merchandisers, ‘a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of Woolworths’ operations’.
  2. If Vincent had fully turned her head, she would not have stepped down and collided with the trolley.
  3. The safety step was adequate in the circumstances and allowed her to access lower shelves without restriction.
  4. Placing a barricade around Vincent would have created difficulty and inconvenience to her work.
  5. The fact that the risk assessment didn’t identify the potential for collision with customers, did not amount to a breach of duty of care by Woolworths.
  6. It was reasonable for the employer to leave the simple task of stepping onto and off a safety step to the ‘good sense and ordinary care of a mature aged worker’.

The Court dismissed Vincent’s case and found that neither Defendant was negligent.  The case may be of assistance to employers seeking to defend similar cases.  It also clarifies the scope of the duty of care owed to contractors who work within retail stores.

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Kate DenningNSWSC finds for employer in step case
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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.