Car accident causes – driver distractions

According to government figures, 58% of drivers admit that using their mobile phone is their biggest distraction while driving. Other distractions include time pressures, food and drink, and using the stereo or changing music.

We’ve written all about Motor Vehicle Accidents previously

Distraction caused by passengers, eating and drinking, in-car technology and stimulus outside the car will be discussed as potential car accident causes below. Read an overview of car accidents.

Passengers

While driving companions can be a saving grace on long-distance road trips, they are a potential car accident hazard for the most part.

Passengers, especially if they don’t drive themselves, have a habit of asking you questions when you are trying to negotiate with traffic at roundabouts and junctions. You may also find that they think they know best and will begin to challenge you about your driving aptitude, again highly distracting.

If asked to navigate, passengers often contribute to hazardous situations by yelling out sudden instructions like “turn left now” when you have already passed the turning. Any driver caught unaware may make a sudden turn and end up hurtling into the street post.

Parents travelling with children in the back are statistically at even higher risk of being distracted and causing a car accident. There have been many cases where drivers have glanced in the rear-view mirror or even turned their head for a split-second to see what their kids are up to and caused a car accident as a result. Read more about car accident incidence rates and gender.

In-car technology and mobile phones

In-car technology is a growing concern for road safety specialists. As the digital age evolves we are seeing the introduction of satellite navigation systems and DVD players to our cars as standard. Then, of course, there is the ongoing battle of mobile phone use while behind the wheel.

Many drivers are now opting for cars that have built in GPS Satellite Navigation Systems which can pinpoint a particular destination via satellite and provide you with directions through a computerised voice on how to get there. This modern alternative to the map is handy for finding your way around but is not always reliable and motorists have been known to cause car accidents while fiddling around with the controls.

Use of a hand-held mobile phone while driving has been banned in the UK since December 2003. Motorists are not even allowed to talk or text on the phone if stopped at traffic lights or in a traffic jam.

However, motorists are still permitted to use their mobile phone if they have a hands-free kit. But, it is worth considering that if you are involved in a car accident while using a hands-free phone, you risk prosecution for failing to have proper control of the vehicle and are likely to receive a careless driving charge.

While we have had car stereos for many years and most wouldn’t regard them as particularly distracting, a recent Australian study revealed that drivers find adjusting their stereo more distracting than using their hands-free mobile phone to make a call. Results showed that those distracted by audio systems while driving braked 10 km per hour slower than focussed drivers while drivers using their hands-free mobile braked 6 km per hour slower.

However, with the introduction of MP3 players and Ipods which have the capacity for hundreds of songs you can store all your favourite tunes and will have less cause to take your attention away from the wheel to skip to the next track.

Parents are also investing in DVD players to entertain their kids in the back of the car. While this is a great ploy to stop joyous chants like “Are we nearly there yet”, loud and sudden noises or a particularly interesting storyline may distract the driver’s attention with fateful consequences.

Want to avoid the consequences of an accident? Learn how: Motor Vehicle Accident Causes.

Eating and drinking

Not many motorists are aware that it is illegal to eat and drink while driving and both of these offences are covered by careless driving laws. Road safety experts believe that eating while driving is just as distracting as using a mobile phone for the following reasons.

Firstly, eating while you drive may require you to remove your hands from the wheel. You may need to open an awkward packet or bottle and eating some foods such as crisps require the use of two hands.

Secondly, some snack foods like chocolate release certain mood-altering chemicals into the brain. For example, scientists have found that chocolate contains tryptophan which can produce feelings of elation, a similar effect to ecstasy. Phenylethylamine is another active ingredient, which works similarly to amphetamines, promoting feelings of giddiness and apprehension, while anandamide targets the brain in a similar way to cannabis.

You may be so overcome by the chemical reactions which occur while enjoying your food that you cause a car crash. However, most would have to eat a fairly large quantity of chocolate before it had a significant impact on their driving ability. Read more about drug driving.

Thirdly, burgers, chips, pies and other greasy foods will get all over your fingers causing a constant urge to lick them or wipe them on something, again requiring you to remove your hands from the wheel. You may even transfer grease to the steering wheel which could cause your hands to slip, the car to swerve and subsequently a car accident to occur.

Outside the car

Just as chatty passengers, the demands of small children in the back seat, eating and in-car technology can be a distraction inside the car, there is a wealth of distractions outside too. How often has an attractive passer by caught your eye when you are supposed to be concentrating on the road? Then there are random sights like students running around in their pyjamas beside the M40 in aid of RAG week that are bound to make you look twice.

As the advertising industry continues to boom we see more and more distractions popping up at the roadsides. Billboards are becoming larger, more colourful and even incorporate moving pictures into their design so it is hardly surprising that they grab our attention.

One particularly dangerous ploy is to use the art of seduction on roadside billboards. One glance at a larger than life Eva Herzigova sporting a Wonderbra is guaranteed to turn the head of most red-blooded males and, if traveling at 60mph along the motorway, this could result in a serious car accident.

In fact, a study has found that provocative pictures can leave you temporarily blind and unable to register any new images for several tenths of a second. If another car was indicating to come across to your lane and you failed to see the signal as a result of gawping at a busty lady you could have a fatal car crash on your hands.

Source: http://www.the-claim-solicitors.co.uk/car-accident/car-accident-driver-distraction.htm

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The most common road accidents and how to avoid them

Britain has an enviable standard of road safety. In 2011 there were on average 3.7 deaths per 100,000 people in the UK – that’s just 0.7 higher than Sweden, which has the safest roads in the world.

But, it’s still a problem.

According to the Royal Society for the Prevention of Accidents (ROSPA), the leading causes of fatal road crashes in the UK include:

  1. Speeding
  2. Drink-driving (Check out the penalties for drink driving here: https://www.rsc.wa.gov.au/Road-Rules/Browse/Drink-Drug-Driving)
  3. Not wearing a seat belt
  4. Careless or aggressive driving
  5. Drivers who don’t look

Speeding includes going too fast for the conditions, whether or not it breaks the speed limit, and kills around 400 people a year, says ROSPA. Another 300 people per year die at the hands of ‘careless or reckless’ drivers.

A Department for Transport report released at the end of 2012 revealed that 42% of all crashes studied involved drivers simply ‘failing to look properly.’ It’s routinely the greatest single reason for an accident.

Furthermore, a government study of accident blackspots in 2010 found that the majority of crashes occurred when the roads were dry.

In fact, in two thirds of all fatal accidents, the driver involved was not even judged to have ‘lost control’ of their vehicle.

The main causes of accidents

We’ve written more on car accidents here: How Do Car Accidents Happen

The message emerging is that many drivers involved in accidents simply aren’t paying attention. Paying attention, along with wearing a seatbelt and remembering not to get blind drunk first, seems a relatively easy thing to remedy.

Sadly, some drivers have simply got too many texts to write before that happens, so the best thing you can do is drive defensively and understand the biggest risks:

  1. Near your house: a US study conducted by Progressive Insurance found that 52 percent of accidents happened within five miles of a driver’s home. The higher number of short trips than long ones is part of it; familiarity and lack of concentration the rest.
  2. At junctions: almost two thirds of cyclists and more than half the motorcyclists killed or seriously injured in the UK are hit by vehicles turning into their path at junctions.
  3. At the end of British Summer Time: in 2008, motoring insurer MoreThan revealed a regular five percent rise in claims over the two weeks either side of the clocks going forward.

If you need a lawyer because you’ve been in a motor vehicle accident, get in touch with AElegal: http://www.aelegal.com.au/motor-vehicle-accidents/car-accidents/

Remember these golden rules:

  1. Leave a two-second gap to the car in front
  2. Don’t drive tired
  3. Leave your phone alone
  4. Never drink and drive
  5. Wear your seatbelt
  6. Think bike – if you only look for cars, you’ll only see cars
  7. Stick to the speed limits

All this will give you the best chance of spotting a problem, reacting to it in time and – should the worst happen – coming through it without adding to the World Health Organisation’s statistics.

Source: Mirror.co.uk

How do accidents happen?

A study of more than 700,000 crashes in the UK has produced detailed evidence on the causes of road traffic accidents.

It’s enough to chill your blood on the warmest day. You’re driving along a familiar road on holiday or to work. But your progress is suddenly hampered by ominous signs; an ambulance screeches past and there’s an unexpected traffic jam.

You inch your way to the head of the queue and as you reach the crash scene it’s impossible not to gawp at the tangled metal. You know that within hours, a police notice board seeking witnesses to a fatal accident will appear.

Always though, two haunting questions remain: what went wrong – and how can you make sure it won’t be you next time?

Now, for the first time, a startling new report, Licensed to Skill, has broken down what happens in those mysterious “lost” moments leading to road accidents, analysing who is to blame, what sex or age they tend to be – and what they did wrong. Using data gathered by police and spanning 700,000 accidents from 2005-2009, the Institute of Advanced Motorists (IAM) has analysed, in breathtaking detail, the anatomy of a road accident.

Unexpected findings emerged, not least the relative unimportance that speeding plays in road accidents that kill six people each day in the UK, leave 68 others seriously hurt and 535 with less serious injuries.

“It has been an eye-opener,” says project manager Neil Greig, of the IAM. “Not just in terms of what causes an accident but in terms of dispelling some of the popular myths. For instance, if you look at Government campaigns they seem to say that speed is the number one problem. But illegal speeding – when drivers exceed the posted limit – accounts for only 13.9 per cent of fatal accidents. A bigger cause [15.9 per cent] is going too fast for the conditions – entering a bend too quickly, for instance – when you might well be under the actual speed limit.”

But the biggest cause of road accidents in the UK today? The statistics are quite clear on this and it’s “driver error or reaction”. It’s listed by police as a factor in more than 65 per cent of fatal crashes and the heading covers a multitude of driving sins many of which you’re probably on first-name terms with. Topping the charge sheet is failing to look properly (the Smidsy factor – “Sorry mate, I didn’t see you’, relevant in 20.5 per cent of fatals involving driver error), followed by “loss of control” (34 per cent) which, says Greig, often means leaving yourself with “nowhere to go” after entering a bend or other situation, too quickly. Other errors include “poor turn or manoeuvre” (12 per cent) and “failed to judge other person’s path or speed” (11.6 per cent.).

Second biggest cause of fatal accidents, to blame for 31 per cent, is the “injudicious action”, an umbrella term for “travelled too fast for the conditions’ (15.9 per cent of those labelled injudicious), “exceeded speed limit” (13.9 per cent) or “disobeyed give-way or stop sign” (2.1 per cent)?

Third culprit in the daily gamble on who lives and who dies is “behaviour or inexperience” (28 per cent), which covers faults such as “careless, reckless or in a hurry” (17 per cent), “aggressive driving” (8.3 per cent) and “learner/inexperienced” (5.3 per cent).

The fourth main category is “impairment or distraction” (to blame for 19.6 per cent of fatal accidents) covering “alcohol” (a factor in 9.6 per cent of fatal accidents) and “distraction in vehicle” (2.6 per cent).

“What is just as telling though is the factors that, though they might be key in a small number of accidents, aren’t all that significant,” says Greig. “We see a lot of campaigning on issues such as diesel and deposits on the road but that only explains 0.8 per cent of fatal accidents, and being dazzled by headlamps, a factor in 0.4 per dent of fatalities.”

Next time you venture out in bad weather, you might like to reassure yourself that slippery roads only factor in 10.9 per cent of fatal crashes involving road problems, while bad road layouts are to blame in 3.2 per cent.

But you should watch out more carefully for pedestrians. A separate heading shows that “pedestrian only, casualty or injured” accidents account for more than 18 per cent of collisions, with (sound familiar?) 10 per cent of them “failing to look properly”.

Delve further into the report and a colossal range of possible causes of accidents, 77 in all, emerges, including vision affected by the sun, vegetation or spray from vehicles and scratched windscreens. Of those motorists judged by police to have been distracted, only 0.8 per cent were using a mobile phone and 0.4 per cent had defective eyesight.

Other reasons accounting for 6.1 per cent of fatal accidents include “stolen vehicle” (1.1 per cent), “emergency vehicle on call” (0.3 per cent) and “vehicle in course of crime” (0.4 per cent).

Vehicle defects are a factor in only 2.8 per cent of fatals, with tyres mostly to blame (1.5 per cent) followed by dodgy brakes (0.7 per cent).

The overriding message? It’s not your car or the “road conditions” that are most likely to kill you. It’s your own driving. Men are more often ‘careless, reckless or in a hurry’, or ‘travelling too fast for conditions’. Women are more likely to be ‘inexperienced’, but less likely to have been drinking.

Age is a factor. Older drivers more frequently fail to look properly while younger ones are more likely to be going too fast, either for the limit, or the conditions.

Time of day is important; between 7pm-7am ‘loss of control’ is the key factor while at other times, it’s the familiar ‘failed to look properly’. Motorists are more likely to be ‘distracted or impaired’ at weekends (17 per cent) than on weekdays (10 per cent).

“Drivers can learn a lot by reading this and if you take just one thing away from it,” says Greig, “it’s that paying a little more attention, taking that little bit more time to look properly, will save your life. Mostly, crashes aren’t about cars going dramatically out of control and up in smoke. It’s small errors suddenly having greater consequences. But if you are a good, trained driver, you can avoid becoming a statistic.” And you’ll get to that appointment on time, too.

If you’ve been involved in a Motor Vehicle Accident get in touch with the team at AELegal.

Original Article: http://www.telegraph.co.uk/motoring/road-safety/8702111/How-do-accidents-happen.html 

Christos v Curtin University – A long standing dispute

The primary proceedings concerned a claim by the appellant (Dr Christos) against his former employer, Curtin University, (Curtin) for damages for psychiatric injury allegedly caused by Curtin’s breach of contract, negligence and breach of statutory duty.

In general terms, Dr Christos, whose employment was terminated by Curtin with effect from 28 October 2004, alleged that Curtin was in breach of contract and was negligent in the period 20 February 2003 to 28 October 2004:

(a)          for failing to assess and resolve, in accordance with Curtin’s grievance and dispute resolution policies and procedures, several grievance complaints made by Dr Christos against Curtin and members of its staff over a period commencing on 1 May 2002; and

(b)          in that Curtin and various staff members bullied, harassed and victimised him.

It was not in dispute that Curtin owed Dr Christos a duty of care. Nor was it in dispute that Dr Christos was psychiatrically disabled. The central issue in dispute was whether Curtin breached its duty of care and, if so, whether the breach was ‘a‘ cause of Dr Christos’s ongoing psychiatric illness.

The primary judge observed that a number of the events pleaded by Dr Christos had occurred prior to six years before the issue of the writ commencing the proceedings before him, namely on 20 February 2009, and that to the extent that Dr Christos sought to rely on breaches of contract or tortious damage which occurred prior to 20 February 2003, the claims were statute barred. However, his Honour recognised that the grievance proceedings that were set in train prior to 20 February 2003 were still of some significance because Dr Christos alleged that Curtin breached its obligations in failing to resolve the early grievance complaints.

In his findings, the primary judge stated that:

I find that Curtin through its staff did not bully, victimise or harass the plaintiff.  Whether there is a breach of a duty of care must depend on a finding that Curtin’s responses to the plaintiff were appropriate and, in the circumstances, reasonable.  In these circumstances, an inference cannot be drawn that the risk of psychiatric injury was foreseeable.

Dr Christos appealed and his senior counsel indicated that the appeal did not involve any challenge to the judge’s findings as to the absence of bullying or victimisation.  Senior counsel said, in effect, that the appeal only concerned Dr Christos’s case in relation to the failure to assess and resolve Dr Christos’s grievances in the period 20 February 2003 to 28 October 2014 and summarised the substance of his case as follows:

  • In the relevant period from 20 February 2003 to 28 October 2004, a reasonable person in Curtin’s position would have foreseen a risk which was not far‑fetched or fanciful, that its conduct in dealing with Dr Christos’s grievances (lodged in 2002 and subsequently) would cause or aggravate a psychiatric injury in Dr Christos;
  • In order to avoid that risk of psychiatric injury, a reasonable person in Curtin’s position would, in the relevant period, have progressed and sought to resolve Dr Christos’s grievances in accordance with the grievance resolution policy;
  • In the relevant period, Curtin failed to progress and seek to resolve Dr Christos’s grievances in accordance with the grievance resolution policy;
  • That failure, in the relevant period, to progress and seek to resolve Dr Christos’s grievances materially contributed to his adjustment disorder, which is a recognised psychiatric injury.

None of the above grounds were established by Dr Christos and the appeal was subsequently dismissed for the following reasons:

  • It was open to the primary judge to conclude that even if Curtin had taken adequate steps to resolve Dr Christos’s grievances in the period 20 February 2003 to 28 October 2004, that would not in itself have made any material difference to his psychiatric condition, because only a resolution satisfactory to him would have made any difference to his psychiatric state at the time.  In light of that finding, there was no suggestion that had the grievance process been completed within the relevant period, Dr Christos’s grievances would have been resolved to his satisfaction; and
  • The evidence of Dr Manners to which Dr Christos referred was in general terms, and was not directed to the specific question of whether delay in resolution of the grievances from 20 February 2003 to 28 October 2004 materially contributed to Dr Christos’s psychiatric injury. That evidence does not rise to the point where this court could say that the judge erred in concluding that the absence of resolution of grievances in the period 20 February 2003 to 28 October 2004 in fact made a material contribution to the nature or duration of, or materially exacerbated, Dr Christos’s adjustment disorder, or was a cause of his subsequent depressive disorder.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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No Damages Award Due to NO Negligence Finding – A Wild Ride

In the matter of Lightfoot v Rockingham Wild Encounters Pty Ltd [2017] WADC 62, the Claimant and her friend were passengers on a boat called “100% Wild”. This vessel was operated by the defendant, Rockingham Wild Encounters P/L (RWE) for the purpose of taking paying passengers on dolphin watching cruises. The skipper of the vessel was an experienced master. Prior to boarding the vessel, Claimant and her friend attended at the RWE’s office to collect and pay for their tickets. She was asked to sign a waiver of liability in relation to the trip at that time and did so.

On the way, out of Cockburn Sound during the tour, the skipper navigated the boat in a westerly direction through a gap in a reef situated between John Point and John Ledge. The vessel encountered some waves, then a larger wave, which caused the claimant to rise out of her seat and come down hard, onto the same seat, striking her back against its edge. As a result of the impact she received a serious spinal injury, which required her to be transferred to hospital, ultimately undergoing surgery two days later. She has recovered from the surgery, but was left with disabilities and restrictions and faces further surgery.

The claimant issued a writ against RWE, claiming damages for personal injury. The claimant pleaded that RWE had breached its duty to take reasonable care of her to ensure that she was not exposed to the risk of injury during the tour on 100% Wild.

At trial, the Claimant relied only upon RWE, its servants or agents being negligent in that the master navigated the boat into an area where it was foreseeable that it could encounter large swell/waves which could endanger the safety of passengers seated near the front of the boat including the Claimant.

The judge stated the briefing given before the tour to the Claimant and other passengers was not sufficient to negative the duty of care owed by RWE to her and went to find that the master was not negligent as the probability of a sudden large wave appearing in those waters was remote.

The judge then went on to analyse the waiver and considered whether it indemnified RWE against the Claimant’s claim and concluded that although the master had not been reckless, the drafting of the indemnity was not limited to personal injury as it had also included property damage and was therefore ineffective.

It’s important to note that had RWE been negligent, the waiver would not have applied and RWE would have been liable to the Claimant in damages.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Man’s Compensation Increased on Appeal

On 28 May 2011, the Appellant was at home reading the newspaper. Three men, forced their way into the house.  There had been a history of animosity between the Appellant and one of the three men. An altercation occurred and the three men assaulted the Appellant.

The Appellant made a claim for criminal injuries compensation.  In his application, he claimed that he had suffered physical injuries in the form of bruising and swelling to his back and behind his right ear.  The Appellant also claimed that he suffered Post-Traumatic Stress Disorder (PTSD) as a result of the attack on him.  His claim for criminal injuries compensation also included a claim for loss of earning capacity arising from the alleged PTSD.

In April 2016, the Chief Assessor of the Office of Criminal Injuries Compensation (Chief Assessor) awarded the Appellant the sum of $24,601 for injuries sustained in the assault, medical reports and future psychological treatment expenses but no economic loss.

The Appellant appealed against this assessment on the grounds that the Chief Assessor failed to give sufficient weight to the evidence of psychological trauma and failed to give consideration to any economic loss.

Pursuant to provisions in the Criminal Injuries Compensation Act 2003 (WA) (the Act), the District Court must decide the application on appeal afresh on the evidence and information that was in the possession of the Chief Assessor but may also receive further evidence and information.  The District Court is not fettered by the Chief Assessor’s decision.

The Appeal began in January 2017.

The Appellant presented additional documentation on the hearing of the appeal.  This additional documentation consisted of the following:

  • Income tax returns and notices of assessment;
  • Payment summaries from the Australian Taxation Office;
  • A facsimile from the Department of Human Services to the Appellant’s legal representatives containing Centrelink claim history and payment information;
  • Records from the Sir Charles Gairdner Hospital; and
  • An affidavit of the Appellant.

Although the Chief Assessor was not prepared to allow any award for loss of earnings because in her opinion the Appellant’s capacity to work was influenced by many non-compensable stressors. She was further not provided with sufficient information to enable her to make any proper estimate of the contribution, if any, of the incident to his loss of earnings. On the subsequent information provided the Appellant would have earned approximately $50,000 per annum in the two years following the incident.

Based upon the above, the Appellant’s award was increased to the maximum sum allowable in terms of the act, namely $75,000.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Meet Simone McMahon, our newest addition to the A & E legal team.

Simone grew up in Perth attending St Norbert College before moving onto study a Bachelor of Laws at The University of Notre Dame.

After graduating from Notre Dame, Simone crafted her skills in the professional sector, undertaking roles with –

  • WorkCover WA – Conciliation & Review Directorate Dispute Resolution Officer
  • City of Belmont – Compliance Officer
  • QBE Insurance Case Manager – Workers Compensation
  • Shine Lawyers Brisbane QLD – PLT Graduate Placement

In 2017 Simone received her Supreme Court of Brisbane QLD Certificate of Admission as an Australian Lawyer.

While these roles gave Simone valuable experience, it is her role as Organ Donation & Transplant Foundation of WA Founder and CEO and extensive work within different charities around Perth that shows her true character. Simone currently has memberships and roles on committees such as

  • WA Department of Health Renal Executive Advisory Group
  • Donate life WA Organ and Tissue Donation Community Advisory Committee
  • International Society of Organ Donation and Procurement Member

Through Simone’s outstanding experience within the professional sector, it is clear helping and working with people in the community is where Simone’s true passion lies.  Her impressive list of awards and achievements are as follows –

  • Member of the Order of Australia 2013 – AM for long term contribution to the field of Organ and Tissue Donation Advocacy in Australia –
  • Lions Club Exemplary Service Award 2008 – Nominated by Victoria Park Lions Club for contribution to the WA community to the field of Organ and Tissue Donation
  • Winston Churchill Fellowship 2007 – A fellowship to travel to the US, UK and Spain to study the International Models of Organ and Tissue Donation
  • Browns WA Woman of the Year 2007 – In recognition of outstanding achievement as a Western Australian woman
  • WA Young Australian of the Year -2006/08 – A national award recognising outstanding achievement in providing voluntary services to the community in the field of organ and tissue donation –
  • Prime Ministers Centenary Medal – 2003 – This is an Australian commemorative medal, which marks the achievements of a broad section of the Australian community for contribution to the Organ Donation sector and for making our country and the wider world a better place
  • Western Australian Youth Awards Finalist 2002 – In recognition of outstanding achievement as a young West Australian
  • Principals Medallion 1999 – St Norbert College

Simone is a vibrant and friendly person who will make sure your case is handled thoroughly and professionally. She is the perfect fit for the A & E Legal team.

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Injured Patron Sues Hotel and His are Damages Reduced by One Third on Appeal

In June 2009, a patron tripped over the corner of a raised timber platform in the lobby area of a local hotel in New South Wales. As a result, he suffered injuries to his neck, right shoulder and back. That relatively dark timber platform was a permanent structure in the hotel lobby — A strip of illuminated LED lights under that bottom edge cast light onto the white marble floor tiles of the lobby.

The primary judge found that the patron did not see the raised timber platform before he tripped and fell and that his ability to do so was affected by “intense glare” from a window or windows to the south of the bar area, which was the direction in which the patron was walking with his sister when he tripped and fell.

The primary Judge considered the patron to be “impressive” and “generally reliable” and found in his favour.

The hotel appealed the decision on the grounds that the primary judge should have held the reason the patron did not see the raised platform was because he was not looking where he was going. In support of its position the hotel stated that the primary judge erred in not accepting its evidence including that of an expert who argued that the patron was not blinded by glare as he submitted.

The appeal began in December 2016.

The duty of an occupier (in this case the hotel) to an entrant is governed by the general principles of the law of negligence, and is measured by what a reasonable person would in the circumstances do by in way of response to a risk of injury if the relevant risk of injury was foreseeable.

In assessing what reasonableness requires in response to a risk of harm, the reasonable person in the occupier’s position is entitled to take into account “with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety”.

Did the hotel breach its duty of care to the patron?

The Appeal Judge stated that he considered the risk of tripping on the platform was obvious within the meaning of the relevant New South Wales legislation (which is similar to the current Western Australian legislation).

The presence and characteristics of the platform would have been obvious to a reasonable person in the position of the patron and once these facts were appreciated the risk of tripping over it was self-evident.

The hazard posed by the platform in this case was of a lesser order and more discernible. The Judge considered the degree of the patron’s shortfall in taking reasonable care for his own safety to be important and therefore reduced the patron’s damages awarded by the primary judge by one third on account of his contributory negligence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Plaintiff Awarded Loss Of Earning Capacity Inclusive Of Dividends

In the District Court case of Dunmall v Welsh [No 9] [2017] WADC 19 a Plaintiff was successful in being awarded damages for loss of earning capacity including of dividends due to him.

In 2004 the Plaintiff and his wife were at the home of friends when the Plaintiff proceeded to exit onto an upstairs balcony with two others people, when it collapsed causing the Plaintiff to fall three meters to the ground. Although the balcony had capacity to support fifty or more people it collapsed under the weight of three persons. As a result of the fall, the Plaintiff suffered a serious and life-changing injury to his left ankle.  He was 63 years old at the time of the accident. Prior to the accident, he had been a General Manager of a large and successful ceiling fixing business with a good income and no plans to retire.

He commenced proceedings against the builder of the balcony as well as the shire who had approved the relevant building plans. The matter proceeded to trial on the issue of liability only.  At the trial, in 2014, the Judge gave judgment and indicated that the builder and the shire were liable to compensate the Plaintiff for his proven injuries and determined the apportionment between the two to be 65% and 35%, respectively.

The matter later proceeded to the District Court for the determination of the quantum.  Having resolved and agreed on all other heads of damages the only issue to be determined at the trial was the sum to be awarded by way of the claim for economic loss as a result of his loss of earning capacity.

The general principles relating to a loss of earning capacity is that a Plaintiff is not entitled to recover his damages unless he establishes, firstly, that his earning capacity was diminished by the negligence–caused injuries and secondly, that the diminution of earning capacity was productive of such economic loss. In other words, what should be compensated is the loss or diminishment of earning capacity, not loss of earnings. Whether there is a link between the negligence–caused injury and the diminution of that earning capacity is a question of fact to be determined on the evidence at hand. If the effects of a Plaintiff’s injuries were on a common-sense approach, a material cause of his decision to retire early, then the financial loss has resulted from the loss of earning capacity and is connected to the Defendant’s negligence. If however the Plaintiff has resigned, by reason of the loss of earning capacity but he is fit to do the work, then the onus lies on him to, as part of his case to prove his earning capacity. Similarly, where an issue arises as to whether a Plaintiff could have obtained employment within his retained capacity, it is for the Plaintiff to prove that such employment is beyond his capacity.

After an analysis of the evidence provided, the Court was satisfied that the Plaintiff had no plans to retire early and, but for the accident, was likely to have worked past 65 years of age provided he enjoyed sufficient basic health to do so, and provided his employer was content for him to do so. The Court then went on to determine the Plaintiff’s likely retirement age and after taking into account his general state of health at the age of 74, which was his age at the time he testified at trial, the Court was satisfied on a balance of probabilities that he would have worked until 67 years of age, which is the extent of his claim.

In that regard the Court also went on to find that the Plaintiff’s capacity to work was almost utterly lost.  That loss was however not immediately productive of economic loss because he was kept at full pay with bonuses until approximately 2005. The Court found that the Plaintiff retained no capacity to return to his pre-accident employment on a full-time basis and that he could no longer work as a manager.

The Defendant argued that the Plaintiff failed to mitigate his loss by failing to apply for alternative employment, however the Court accepted the Plaintiff’s evidence that there was no point in applying for another job because he was not able to do the work anymore.  The Court found that the Plaintiff did not fail to mitigate his loss.

With regards to the assessment of loss of earnings, the relevant Western Australian Legislation provides that a Court must disregard earnings lost to the extent where it accrued at a rate of more than three times the average weekly earnings at the time of the award.

With regards to the dividends, ordinarily they would not amount to “earnings”, although they are income. However, in this case, although no income tax was payable on the dividends, the Court considered that the dividends which were received through the Plaintiff’s efforts at work and by virtue of his actions as General Manager amounted in substance (if not form) to something in the nature of a reward for past, present or future services as an employee.  In that regard the Court considered that the dividend amounted to “earnings” within  the meaning of the relevant Legislation.

After applying a 5% discount for contingencies and vicissitudes of life and taking into account that the Plaintiff was at reasonable health at the age of 74, it calculated the Plaintiff’s loss at $324 358.00 for loss of earning capacity. The Court further allowed the appropriate discount of 15% for taxes, administrative fees and contingencies, but added past and future superannuation, salary sacrifice bonuses and dividends to the loss of earning capacity above, culminating in the sum $505 327.00.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Manufacturer Of Heavy Equipment Not Liabile To Contribute For Injuries Of Worker

In the recently decided matter of Simpson v Alliance Contracting PTY (Ltd) and Friob PTY (Ltd) [2016] WADC 158, the Plaintiff was severely injured in a mine site accident when he made his way under the suspended stemming bucket of a loader and attempted to remove an obstruction by reaching his left hand up into a discharge chute.  At that particular instance the driver of the loader inadvertently engaged the hydraulics of the vehicle allowing the operating sliding gate in the discharge chute to severely lacerate and partially amputate the Plaintiff’s left hand.

In an action against his employer, the employer as Defendant commenced Third Party Proceedings against Friob PTY Ltd (Friob) who had manufactured and supplied the stemming bucket at the request of the Plaintiff’s employer.

The Court was requested to decide whether it was reasonably foreseeable for Friob that a person, such as the Plaintiff, may use a variety of methods to clear a blockage at the gate of the discharge chute in a thoughtless, inadvertent, careless or deliberate manner by inserting a hand or arm into the discharge chute in an attempt to manually clear a blockage.

Numerous expert witnesses were called including but not limited to a Civil Engineer, an Equipment Asset Manager, a Mechanical Engineer and the General Manager of Friob.

In considering the relevant legal principles, including Section 5A (2) of the Civil Liability Act 2002 (WA), causation, duty of care and the assumption of risk, the Court found as follows:

a)   Friob had a duty of care to manufacture design and supply stemming buckets:
i) that were fit for their intended purposes;
ii) with reasonable care and skill so as to not to create any unavoidable hazards;
iii) in a manner which avoided reasonably foreseeable risk of injury to an employee; and
iv) which avoided reasonably foreseeable risk of injury;
b)   that an Australian Standard:
i) is a guide to, but cannot dictate, the standard of reasonable care required in the circumstances of individual cases;
ii) also represents the consensus of professional opinion and practical experience as to sensible safety precautions and a standard of reasonable conduct;

However, in this case, the risk of injury of the kind suffered by the Plaintiff and the general manner in which it might occur were not reasonably foreseeable for the following reasons, among others:

a)  the stemming bucket was manufactured and designed:
i) for delivering stemming material into a blast hole on a mine site;
ii) for a loader and it was unable to operate in isolation to that loader;
b)  the stemming bucket was hydraulically operated with a sliding gate which was in-built not open or exposed;
c)  the stemming bucket was designed to be used by a single worker and operated by him with controls in the cabin;
d)  it was manufactured to be hydraulically operated by the driver and not by someone within reach of the operative/driver and positioned in the cabin;
e)  the loader operator/driver did not need to be in close proximity to or require access to the hydraulically operated sliding gate in the ordinary cause of operating the stemming bucket;
f)   various warnings were included in an operation and maintenance manual provided by the manufacturer;
g)  the loader operator/driver was required to carry out training modules in safety rules and operating procedures which were common across the mining industry; and
h)  when the stemming bucket was on the ground there was no access to the discharge chute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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