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A roundup of recent court decisions raising issues relating to unrealistic costs budgets; the assessment of physical and psychiatric damages in dust-related claims in Australia; vicarious liability for foster carers; and player-to-player personal injury sports claims.
Claimant’s cost budget criticised by judge as “unrealistic and disproportionate”
Jenkins v Thurrock Council [09.09.24]
This case involved a costs management dispute in a personal injury claim where the claimant's budget was significantly reduced by the court. The claimant was also ordered to pay the defendant’s costs of and occasioned by the costs management hearing.
The claimant sought damages exceeding £200,000 due to an injury sustained while working as a refuse collector. The injury led to both physical and psychological injuries.
The claimant served a budget to a trial totalling £1,195,754.26 and a second budget through to a second costs and case management conference of £730,396.28. The defendant’s budget was £383,417.20.
The judge held: “My conclusion is that the claimant had presented and maintained an unrealistic and disproportionate approach to his estimated costs in the context of the demands and requirements of this case.”
Contact: Lewis Thompson
First common law assessment for coal mine dust lung disease in New South Wales and Queensland, Australia
Keogh v CPB Contractors Pty Ltd & Ors (No 2) (NSWDDT) [25.07.24]
The New South Wales Dust Diseases Tribunal delivered its first common law assessment for coal mine dust lung diseases on 25 July 2024. Each of the defendants were found to have been liable for the plaintiff’s injuries.
The decision relates to a plaintiff whose prolonged exposure to dust in Queensland and New South Wales coal mines led to severe physical and psychiatric health issues.
The court considered the issues of divisibility/indivisibility of related diseases and apportionment of physical and subsequent psychiatric injury.
The judge held that the psychiatric injury, just like the respiratory damage, constitutes divisible disease. Notably, the Tribunal awarded the plaintiff A$750,000 in general damages, setting a significant precedent in the realm of dust-related injury claims.
The decision is indicative of an upward shift in general damages for dust disease claims; however reinforces the need for each case to be examined on own factual evidence.
Contacts: Con Kakakios and Amanda Do
Related item: Coal miner decision sets precedent for assessment of physical and psychiatric damages in dust related claims
Local authority found liable for assaults by family foster carer
DJ v Barnsley Metropolitan Borough Council & SG (for and on behalf of the estate of AG) [23.07.24]
On 23 July 2014 the Court of Appeal held that the defendant local authority was vicariously liable for assaults by a foster carer who was also a relative of the claimant.
The claimant, who had been in and out of foster care, moved in with his relatives in January 1980. They were approved by the local authority to become the claimant’s foster carers. The assessment was positive despite a police check confirming one of the foster carers had been convicted of sexual offences in 1966. He was not considered a risk to his 10 year old nephew.
The justices in the Court of Appeal made it very clear that their judgment was based on the specific facts of the case. They found the relationship between the foster family and the local authority was one that was akin to employment from the time the claimant was brought into care. Specifically, the local authority had not recruited the family but had assessed, selected, monitored and supervised. They also found that the local authority had a statutory duty to care for and accommodate the claimant and that, in caring for him, the foster family was integral to the local authority’s business of discharging its statutory duties towards him. They held that motive was not relevant as foster carers have many reasons why they offer themselves for this role.
Whilst the case does offer some useful guidance, it does not give a clear steer on how defendants and their representatives should respond to future cases involving relatives caring for looked after children under the current legislation. Each case will still need to be assessed on its individual facts.
Contact: Joanne Kingsland
Related item:Vicarious liability for foster carers – Court of Appeal ruling
Running at full speed towards fellow sports player found to be reckless
Elbanna v Clark [20.03.24]
In this case, an amateur rugby player was found liable for injury he caused when “playing an opponent” without the ball.
The claimant and defendant were playing in an amateur rugby match on opposite sides. During the match, the defendant ran forward at speed from just behind the halfway line to chase the ball. His intention was to run forwards to get to the ball after it had been kicked. The ball was high in the air and the claimant was more or less stationary with his back to the defendant with his eyes on the ball.
The defendant ran forward, gathering speed over about 12 metres, in a straight line, towards the claimant. The ball was still high in the air. The defendant’s body braced for impact shortly before both he and the claimant moved slightly to the right. The defendant then collided with the claimant at speed.
The judge found that the defendant failed to reduce his speed or alter his line of run. Liability was made out as the collision was avoidable or at the very least could have been reduced to a soft contact which would not have caused injury. Whether or not the collision was intentional, to have run directly at the claimant at full speed and to have collided with him, was found to be reckless. It also amounted to playing an opponent without the ball in contravention of the laws under the Rugby Football Union rules, and as such, encouraged the risk of injury.
Contact: David Matcham
Related item: Player-to-player personal injury sports claims on the rise
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