Proving liability is different from proving the ongoing effect of an injury

Date: May 16, 2016

Sometimes it’s possible to prove that a defendant failed in their duty of care and caused an injury, but if the consequences of that injury aren’t fully proven, the right appeal can severely reduce the damages an injured person may expect. Judgments like this seem all the more unfair when we see that the plaintiff was injured when he was just 3 and a half years old.

Appeal awarded

The appeal of Brown v Hewson (NSWCA 393) was decided in December 2015. The appeal set aside a judgment which had awarded $100,000 in compensation for the lifelong economic loss of a little boy injured at a daycare centre. The economic loss meant in this case that his apprenticeship could not go ahead because of his injury. The original award of $192,721 was reduced to $92,721.
The tort was over negligence in the day care centre’s duty of care. On 10 Feb 1998, the centre had allowed the 3.5 year old plaintiff to climb on an overly-high balance beam with his shoes on the wrong feet. Whether the height of the beam materially contributed to the accident was one of the torts; another tort was the question of just how badly the plaintiff’s head was injured and whether it affected his future income.

Don’t neglect to claim for damages over historical injuries

The boy’s tutor sued the owners of Wagga Wagga’s Town and Country Children’s Centre. The boy’s tutor claimed the head injury was responsible for him experiencing major headaches and behavioural problems. In that case, Her Honour found the plaintiff would be at a disadvantage in the open labour market as a result of an ongoing disability in his elbow, however on appeal, that decision was not upheld

Ongoing injury wasn’t proven

It was November 2014 before the case first made it to court. Her Honour awarded damages at $192,721. However the recent appeal found the plaintiffs’ claim was complicated by evidence the plaintiff had no history of migraine-type headaches until 18 months after the accident. In the October 2015 appeal, her Honour found that while a duty of care was breached, the plaintiff to prove his head injury was caused by the child care centre, so $100,000 for economic loss was set aside.

Lessons Learned
Stronger expert medical evidence relating to slip and fall injury claims- which Gerard Malouf and Partners can help organise – would have resulted in a fairer outcome for this plaintiff. In fact, whether or not an injured person was wearing their shoes on the wrong feet hardly matters – Gerard Malouf and Partners are experts in handling public liability and slip and fall claims.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.