COURT DECISIONS (JUDGMENTS)

DESCRIPTION

Authors note: Cyclic loading causes connector misalignment. The operator of the climbing gym should have used a rope attachment method that was stable and secure. Ordinary carabiners with no captive pin or captive eye are almost certain to become misaligned due to cyclic loading events while climbing up and down a wall. This incident was foreseeable.

Michael Neal sustained a blow to his head which caused severe injuries. He was intoxicated at the time and refused to be treated by ambulance officers or to be taken to a hospital. Police took him into custody (under the Intoxicated Persons Act NSW) for his own protection. His condition deteriorated overnight while in custody. He developed a right sided weakness (a condition known as hemiparesis) which he argued was caused by a failure of the police to take him to hospital. A key issue was the apparent failure of the ambulance officers to properly inform the police to be observant for any deteriorating signs and symptoms. The police of course argued that they had no reason to suspect any potential problems because the ambulance service had already handed him over to the police (and their job is policing - not medical practice).

He sued the State of NSW in negligence (initially in the District court). He was only partially successful against the police service. He appealed the decision.

The NSW Supreme Court of Appeal unanimously dismissed his appeal.

The NSW FireBrigade appealed against a decision involving an emergency service vehicle which crashed while proceeding to a fire. Their appeal was dismissed. The Court held that drivers of emergency vehicles owe a duty to proceed with caution through traffic and at intersections, etc. The emergency services Acts do not provide immunity from legal liability in cases where drivers do not exercise the proper degree of care - particularly when driving at high speeds.

He also observed a worker climb out of an Elevating Work Platform (EWP) in order to access and step on to a roof surface (without being attached to an anchorage). Justice Kavanagh stated (at 23):

"Once a head-contractor determines to subcontract out the particular tasks on its construction site its chief responsibility on site is quality control and safety. To perform such tasks it must perform its supervisory role with rigour. That is the failure this breach revealed: a failure of the head contractor on a construction site to supervise the required safety systems of its sub-contractor. That failure was reflected in unsafe work practices on the head contractor's building site for which it holds statutory responsibility."

He failed.

Per Justice Hodgson (at 53):

"There is no evidence that the configuration of the surface of the roof was particularly unusual, that is, that kliplok roofs of this kind are uncommon. Furthermore, the configuration would have been obvious immediately it was stepped onto."

Per Justice McColl (at 62):

"He was an independent contractor with apparent expertise to safeguard himself in undertaking his trade. The Trust was not under a duty to give him any warning or provide safeguards in such circumstances."

It was held that a patient should be warned of risks that might impact upon their decision to undertake surgery in the first instance. In this case, Dr Rogers ought to have warned Maree Whitaker that there was a chance that she might lose sight in her one remaining good eye. This he did not - and she became blind. Christopher Rogers argued that he ought to have been protected from legal liability by the Bolam principle (adopted in UK courts). The Australian High court rejected this view.

"...actions of lifting as occurred in this case are so far removed from what is needed to prevent forward movement that there is in my view no justification for them."

Steve Jay Clark was a guide employed by Jungle Surfing at Cape Tribulation in Nth Qld. A client under his direct supervision fell from a platform while transferring to a flying fox (aerial cable-way) and suffered serious incapacitating head injuries. A jury convicted him of criminal negligence and he was sentenced to 18 months imprisonment. He appealed his conviction and failed.

It was held that Wilderness Escape Outdoor Adventures Pty Ltd was negligent in that it did not have a system in place for the proper checking of safety belay systems. Magistrate S.M. Lieschke stated (at 19):

"Having good quality equipment, that is regularly inspected and renewed is worth little if it is not used correctly. The same applies to Wilderness having well trained and qualified staff. Their expertise is of little value if not properly utilised."

Wilderness Escape were convicted and fined $36,889.00

"There is no statutory duty to take positive action to protect entrants against risks of their own making which the authority has done nothing to create or increase, even if the possibility of an entrant's careless conduct be foreseeable."

Thomas Falvo sued Oztag Sports (and the local city council) after injuring himself in a game of touch rugby. He claimed the sport was dangerous as defined in the Act. He failed.

It was held that touch rugby was not a dangerous recreational activity.

Alexander Fallas accidentally shot Con Mourlas while Roo shooting at night (spotlighting). Mourlas sued him and won. Fallas appealed the decision arguing that the Mourlas could not have sued due to the effect of the Civil Liability Act. He lost.

It was held that the recreational activity was dangerous as defined by the Civil Liability Act, however the risk of being shot was not obvious. Therefore, the way was open for Mourlas to sue Fallas in the Tort of negligence.

Matthew Holbrook fell while climbing and was injured at an indoor gym. He was belayed by Erin McCracken.

Justice Kenneth A Rocco said at (5-7):

In order to gain the thrill associated with rock climbing, the appellant voluntarily assumed the primary and “inherent risk” of the activity, viz., falling.
Blankenship v. CRT Tree, Cuyahoga App. No. 80907, 2002-Ohio-5354.

Therefore, despite appellant’s expert’s opinion that appellee was “reckless” in permitting the rope to slip through her hands, the risk of falling inherent to the activity of rock climbing can be “reduced***[but] cannot be eliminated.”
Vorum v. Joy Outdoor Education Center, (Dec. 12, 1998), Warren App. No. CA98-06-072.

This is especially true when the injury results from simple human error.
Gentry v. Craycraft, supra, *P. 14.

Since there was no evidence that appellee acted either intentionally or recklessly when the rope she held slipped before the harness device could lock it in place, the trial court correctly concluded she was entitled to summary judgment on appellant’s claim.

Per Chesterman JA at 78:

The respondent [Watson] pleaded guilty to manslaughter on the basis that his actions or, more accurately, his inaction, constituted criminal neglect which is made an offence by a combination of s 290, s 291, s 293 and s 300 of the [Queensland] Criminal Code. By his plea of guilty the respondent admitted that he had undertaken to do an act, the omission of which was dangerous to his late wife’s life and that her death was caused by his omission."

The principle of criminal negligence is found in Bateman's case:
R v Bateman (1925) 94 LJKB 791

Per Lord Chief Justice Hewart (at 10'12):

…in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving
punishment."

In R v TakTak (1988) 14 NSWLR 226 the Court referred with approval to what was said in R v Stone & Dobinson; R v Cowan [1955] VLR 18:

“It is clear from that passage that indifference to an obvious risk, and appreciation of such risk, coupled with a determination nevertheless to run it, are both examples of recklessness … What the prosecution have to prove is a breach of duty in such circumstances that the jury feel convinced that the defendant’s conduct could properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.”