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Written by Peter Carter

October 15, 2011

Appeal court battles – intimidating even the most experienced lawyer – can gain a sense of the surreal for plaintiffs who win a contested trial, only to have an insurer turn around to have a second crack at knocking out their claim.
This was true for two personal injury claimants who recently found themselves confronted by appeal arguments from vanquished defendants that their verdicts should be reversed because – in both cases, so it was argued – their injuries “had not been reasonably foreseeable”.

Tabcorp worker, Kathryn Dank, was awarded $240,000 in February for a prolapsed disc from lifting a box of copy paper. It was an awkward manoeuvre in a confined space that required her to twist her upper body as she raised a 13kg box from the floor.

The betting company was liable because it did not instruct her on safe lifting techniques: to move one packaged 500 sheet ream at a time or to stand as close as possible to the wall when lifting the box. Tabcorp wagered on an appeal all right but did its dash.

In the words of the appeal judges: “The evidence amply justified the conclusion that it was reasonably foreseeable that [Dank] would sustain an injury in conducting the lift in accordance with her usual method”. Dank keeps her $240,000 and WorkCover must pay her appeal costs – a losing bet for them.

The second case concerned a Brisbane City Council bus driver bashed when walking along a poorly lit path – overgrown with bushes – at the Balmoral bus terminus. He was carrying his cash tin, as required, as he made his way to the employee’s bathroom and back to the bus.

The BCC agued on appeal – in an attempt to overturn the $100,000 award to the driver – that it would have been impossible for them to have eliminated all potential ambush hiding places.

The appeal court accepted that common sense – by reference also to the remedial work that the Council had actually performed since the attack –  showed that the risk of injury could have been reduced: “It is not only about reducing hiding places but about making the environment more open so that it was a less attractive venue for a robbery and a bus driver would have the opportunity to take appropriate action to avoid the potential robber.”

Both appeals were hard-fought and came at the end of several years of court process. The surreal element has been lifted and the claimants face the reality of their post-accident future.

Tabcorp Holdings Ltd v Dank [2011] QCA 253 Margaret McMurdo P, Fraser JA and Mullins J 23/09/2011

Brisbane City Council v Miles [2011] QCA 250 Margaret McMurdo P, Margaret Wilson AJA and Mullins J 23/09/2011

Categories: Personal Injury , Litigation & Law Practice

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