West Australian Medical Negligence Law Blog : West Australian Medical Negligence Lawyer & Attorney : Julian Johnson Law Firm : Medical Malpractice, Cerebral Palsy Litigation

Although not concerning medical negligence cases, this case is of interest.

In this recent Court of Appeal decision (delivered 6 Nov 09), the Court found that a driver of a stolen car did not owe any duty of care to a passenger in such vehicle, who was aware of the fact the car was stolen.  The Court found the driver and passenger were engaged in "a joint criminal enterprise" and so no duty to take care arose.

Consequently, when the driver drove negligently colliding with a pole causing injury, the passenger, who at the time was a 16 year old girl, could not recover compensation for her injuries.  The passenger's injuries were serious and another passenger in the vehicle died from their injuries.  

The passenger was in a relationship in which she regarded the driver as akin to her 'uncle' and at trial evidence had been lead indicative of the driver's insistence that the passenger remain in the vehicle, when she had asked to be dropped off.  She had made this request when the driver, after initially driving safely, had started to speed and drive more dangerously.

I would have thought, with respect, that this final point would have removed any 'joint criminal enterprise" finding.  The passenger wished and requested to be let out of the car.  Had her request been followed, the joint illegal conduct (driving the stolen car) would have come to an end and she would not have been in the car at the time of the collision.  This point was recognised and commented upon by Buss JA.  I am surprised it wasn't emphasised more by the passenger.

Newnes JA, the other member of the Court based his conclusions on a view that:

"the respondent could not reasonably have expected that the appellant would drive the vehicle according to the ordinary standard of care" 

With respect, this seems to me to make a great leap.  Why was the fact the passenger's 'uncle' was driving a stolen car, necessarily reason to assume he would not drive safely and would put the occupants of the vehicle at risk by dangerously driving?  Also, what is the relevance to this of the fact, as stated above, that the passenger had requested to be let out as soon as the driver started to drive unsafely?  Doesn't this say anything of her expectations?

This decision reversed the trial judge's conclusion in favour of the passenger.

No doubt a shortcoming on my part, but with the greatest of respect, I can't understand the reasons for this conclusion.  McLure JA and Buss JA suggest the foundation for such view is that given the illegality of the enterprise it is not possible to ascertain an appropriate standard of care to be expected [R3] + [R81].    

Buss JA stated [R82]:

It is not feasible or appropriate for the law to endeavour to fix a standard of care by taking into account and evaluating the incidents of the criminal enterprise upon which the appellant and the respondent were jointly engaged

I for one am not sure why this wasn't feasible or appropriate.

Clearly a tough stance for our highest court. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We have no doubt all seen or heard stories about ill-advised Facebook and other social networking posts.  Well another to add to this, on this occasion via a recent District Court decision of Keen DCJ in Barford -v- Bini [2009] WADC 152, delivered on 6 Oct 2009.

In this case, a motor vehicle accident claim, the key question was whether or not the plaintiff, a passenger in a vehicle involved in a collision, had sustained enduring neck and back injury in addition to transient bruising etc.  After a thorough review of the evidence, Judge Keen found he could not accept the plaintiff's evidence in a number of important respects and so was not satisfied any significant injury had occurred.  

Relevantly, Judge Keen found inconsistency  between the plaintiff's activities during an extended trip to Europe and North America and his claimed degree of neck symptoms.  Judge Keen was taken, as one example, to the plaintiff's Facebook entry which referred to 'climbing' the Empire State Building.  The plaintiff was evasive as to what 'climbing' meant and to what extent he had climbed stairs at this landmark.

The plaintiff's claim was dismissed on the basis that no serious injury had been sustained.

Interesting to speculate how the defendant obtained access to the plaintiff's Facebook posts.  It seems likely this was fed to the defendant (the compulsory third party insurer) by an acquaintance wishing to 'dob him in.'  With friends like that......

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Although not a medical negligence claim, the recent decision by Judge O'Brien in Jenkin -v- Brook [2009] WADC 140, delivered on 9 September 2009, provides interesting reading as a recent factual example and summary of the assessment of damages in a claim where negligence causes death.

In this case Judge O'Brien accepted the plaintiff, who was the grand-daughter of a women killed in a motor vehicle accident, was entitled to make claim for the 'value' of lost services her grandmother would have provided to her.

Importantly, as Judge O'Brien (with respect) correctly identified, the claim could be made, regardless of whether there was a "need" for the services that would have been provided by the grandmother.

Sadly, the claimant suffered from severe global developmental delay.  She also has physical impairments.  She had a special bond with her grandmother, who provided extensive support and as Judge O'Brien found, would have continued to do so, had she not died.

Judge O'Brien recognising that the valuation of such services was not necessarily to be limited to their commercial value (given such services 'value' was not simply its replacement cost by a professional carer etc).  However because no other rate was put forward by the parties, Judge O'Brien accepted such commercial rate should be used in this particular instance ($35/hour).

Total damages were awarded in the sum of $340,000.00.

Even though not a medical negligence case, the principles of assessing potential quantum in the event a family member dies, who providing services but not financial support, illustrated by this case are equally applicable in medical negligence cases.  As the case demonstrates, the commonly held view that if wages were not earnt and contributed by a deceased, no claim of substance can be brought, is wrong.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link