Public Liability Claims: Negligent or Not?

Public Liability

Let’s look at two cases Hubbard v CPB Contractors Pty Ltd (No 2) [2020] NSW SC 1922 and Hayley Marks v Skydive Holdings Pty Ltd [2021] VSC 21 who both look at negligence and come to two different conclusions.

Facts

Hubbard v CPB Contractors Pty Ltd (No 2) [2020] NSW SC 1922

Mr Hubbard was employed as a security guard performing duties at a premises of the occupier. It was alleged that he had fallen in a ditch and sustained injury on 5 October 2011. He presented with a walking stick that he uses to walk and is in constant pain. The defendant disputed that the accident occurred as it did and states that they were not negligent relying on that Mr Hubbard had failed to take reasonable precautions. They also alleged that he contributed to his own injury claiming contributory negligence.

Outcome

The Court found in favour of Mr Hubbard awarding judgment in the sum of $11,212,281 and that the Defendant pay his costs.

The Court looked at the tests of duty of care, breach of duty of care, causation and damages. They were satisfied that the risk of harm was reasonably foreseeable and not insignificant and that the defendant must have been aware that security personnel would be attending the compound at night. The Court identified that there was no illumination where Mr Hubbard had fallen, no webbing to guard and therefore had breached its duty of care.

The Court stated that causation was established and that he was not satisfied that a torch would make Mr Hubbard guilty of contributory negligence.

A success for Mr Hubbard.

Now let’s look at the second case of, Hayley Marks v Skydive Holdings Pty Ltd [2021] VSC 21.

Facts

The Plaintiff undertook a tandem skydive jump on 18 August 2018.

The Plaintiff suffered a fracture to her lumbar spine at L2 for which she required a L1-L3 fusion and an L2 corpectomy. She also suffered anxiety and depression.

The cause was a heavy landing and the plaintiff claimed that her injuries were caused by the lack of care and skill. Although she signed a waiver, the Court held that the waiver did not bar the claim.

The Defendant argued that the injuries are a result of a materialisation of inherent risk that could not be avoided by exercise of reasonable care.

Outcome

The Court found that they could not find that the injuries were caused by the failure of the instructor or the company to exercise reasonable care and avoid a foreseeable risk of injury, or to conduct the tandem jump with due care and skill. The Defendant was not liable in negligence, contract or under the Australian Consumer Laws.

Further the Court stated that the injury was a result of the materialisation of an inherent risk associated with skydiving, that could not be avoided by the exercise of reasonable care and that the turbulence is invisible and cannot be avoided and there was nothing else that could be done to slow the rate of the descent.

Key Takeaways

Many cases result in different outcomes. It is important to have the right legal team behind you and we at Coutts have the experience and the expertise in family Law & Criminal Law in Parramatta.


ABOUT KARENA NICHOLLS:

Karena Nicholls

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.


For further information please don’t hesitate to contact:

Karena Nicholls
Partner
karena@couttslegal.com.au
1300 268 887

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This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.