Our client was walking by the entrance of an industrial premise when a large metal gate was blown outwards by a gust of wind. The gate struck our client, causing him to be thrown onto a major road.
Our client sought compensation for non-economic loss, past and future out-of-pocket expenses, and past and future domestic assistance. There was no claim for wage loss.
From the time the public liability claim proceedings were commenced, there was an issue on who was responsible, and this ultimately impeded settlement discussions from taking place. A modest offer was made by the defendant prior to hearing, however this offer was rejected by our client.
The matter proceeded to a two day hearing before a Judge in the District Court of Sydney. The claim was hard fought by our barrister. There was legal argument regarding the occupier’s duty of care, and sections 5B and 5C of the Civil Liability Act. Much of the claim also turned on whether our client’s accident was reasonably foreseeable. The defendant was of the opinion that what occurred to the plaintiff was a “freak accident”, and was not reasonably foreseeable. The defendant’s experience with the subject gate indicated that it was not susceptible to moving in the wind, much less with sufficient force to injure someone. However, His Honour was not convinced that the evidence supported the proposition that this was a “freak accident” occurring because of a “freak gust of wind”. The Judge held that it was reasonably foreseeable that a heavy and unsecured gate that is able to swing freely without resistance might swing out in strong wind and injure someone passing by.
His conclusion was reached by an application of common sense. The defendant tried to allege contributory negligence against our client in that he failed to take care for his own safety and failed to take an alternate route when leaving the premises. Again the Judge did not find any contributory negligence.
A public liability claim judgment was handed down on 2 August 2013 for the sum of $151,817.00 plus costs.