Ms MB attended a hotel in the City where it was holding a bubble party. The hotel recognised that the bubbles were likely to cause the surface of the floor to become extremely slippery and therefore, laid down carpet mats throughout the area including hallways. Normally these mats would also extend into the bathrooms (but not the cubicles).
Ms MB had been drinking with her friends at her home in the Penrith area before embarking on a travel into Sydney city. She attended the hotel with friends and in an intoxicated state. She was then served further alcohol by the hotel in contravention of the responsible service of alcohol legislations and guidelines. If this was all that had occurred, then Ms MB would have had a greater chance of receiving suitable compensation.
On the day of the incident, Ms MB proceeded to the ladies bathroom. As expected, contaminants from the bubbles remained upon her shoes. She proceeded into a cubicle. She, then, slipped and fell causing multiple fractures to her left leg. Normally it would be possible to form an argument that the hotel failed in their duty of care in ensuring that the floor surface was suitable and safe for the general public. Even with the level of intoxication that Ms MB was suffering from, it could be argued that this was only contributory as the alcohol served by the hotel and that it was more likely than not that the accident could have occurred despite the intoxication as there would have been an immunity from suit if the accident was caused as a consequence of the intoxication.
Unfortunately, Ms MB on that night, had experimented with her first ecstasy tablet. This information was conveyed to the ambulance who attended the scene as well as the hospital staff in the Emergency Department. Although it could be argued that the accident could have still occurred despite the effects of the ecstasy tablet, such a position would be extremely difficult to assert. Primarily it is not known as to what it is that she actually took. Ecstasy can take many forms with many types of chemicals. Her imbalance may have been caused by the ingestion of this drug. The fall may even be as a consequence of MB collapsing in the cubicle. Because of the nature of the drug, it was impossible to ascertain with any certainty its effects.
For in excess of one and a half years, the only offer that the defendant was prepared to make in this matter was a verdict for the defendant. Gerard Malouf and Partners eyes it was not satisfactory and we continued to press the claim on the basis that the illicit drug should be taken as per the legislation to be akin to any other type of drug or alcohol. We continued to assert that the accident would more likely than not would have still occurred whether or not our client had taken the ecstasy tablet.
As our client did not own any assets, we were prepared to have the matter listed for hearing. It was listed to be heard in May 2017. This was sufficient to draw out an offer at an informal settlement conference in the amount of $35,000.00.
Although this amount appears to be modest, it is compensation obtained from a very difficult position based upon the facts.
Should the matter have run, we believe that Ms MB would have failed in her claim because it would be repugnant for any court to allow compensation to go to a person who may have sustained injury as a consequence of taking an illicit drug.
It was only through the fearless tenacity of Gerard Malouf and Partners that we were able to obtain a settlement in Ms MB's favour.