Written by Peter CarterOctober 15, 2015
A South Australian solicitor injured in a jet ski accident at Couran Cove during his 2001 Christmas vacation sued the resort for allowing his 16-yr-old son – a first-time rider – to operate the watercraft with him in the pillion position.
Andrew Rogers and his wife, their son Alex and 12-yr-old daughter were holidaying with Mr Rogers’ sister and her family in a villa at Stradbroke Island hideaway.
The resort’s refusal of Alex’s access to the gym and to windsurfing equipment because of his youth, appeared to represent a high degree of “safety consciousness”.
Not so when it came to jet skiing.
An “instructor” pointed out the course boundaries to Alex and his father and how operate the engine, but no coaching was given to the novices about handling or maneuvering the watercraft.
The “tuition” was completed “in a few seconds” without any practice run or other routines under the watchful eye of an instructor.
The pair set off – with Alex driving on the first run – in pleasant conditions at a speed that in hindsight, was too fast.
As they approached the end of the course with Mr Rogers’ arms around his son’s waist the jet ski jerked and tipped, ramming his face into the back of his son’s head, smashing his goggles and injuring his left eye and face.
He sued the resort alleging implied terms in the contract of hire that the jet ski facilities would be safe and not expose him to the risk of injury and that the resort would take reasonable care for his safety.
Rogers contended that had he understood the risks that he later learned applied to the sport, he would not have let his son drive.
The Queensland Supreme Court upheld the claim, ruling that the resort breached its duty by “not explaining adequately the use of the throttle and the necessity for increased power to turn safely when travelling at a moderate speed” and permitting the uninstructed 16-yr-old to drive at all and to drive with a pillion.
In September 2007, it awarded nearly $600k in injury compensation damages to the 52-yr-old including $350k for loss of future earning capacity .
In March 2014, Rogers issued a second lawsuit, this time against his previous solicitors, alleging that they failed to obtain a statement from him as to the extent to which the injury interfered with the conduct of his legal practice and his ability to earn an income.
Had they properly performed their professional duty – he claimed – his damages would likely have been assessed about $1.1 million higher than the 2007 award.
He also alleged that as a result of their conduct, they ought to forfeit legal fees he had paid of $190k.
The law firm – the predecessor to publicly listed legal group Shine Lawyers – moved to strike out Rogers’ claim on the basis that it was “an abuse of process” in that he was attempting to “re-litigate” the earlier case.
Justice James Douglas agreed, reasoning Rogers’ contention he would have had an opportunity of obtaining a better result was “designed to lead to conflicting judgments on the question of the proper award of damages” and hence an “abuse”.
In any event, he ruled the solicitors were entitled to immunity from liability given the outcome arose from judicial proceedings “on the merits”.
His Honour struck out the claim except insofar as it relates to challenging the law firm’s entitlement to its $190k fee.
Mr Rogers has filed an appeal against the decision.