Title 2014

SIMMONS v ROCKDALE CITY COUNCIL (NO. 2) [2014] NSWSC 1275

Alex Simmons sustained serious injuries as a result of an accident that occurred on 11 April 2007 whilst he was riding his bicycle through a car park adjacent to the St George Sailing Club.  He struck a boom gate that had been closed across a motor vehicle entrance to a car park.  The accident resulted in a below knee amputation of his left leg.

On 27 September 2013 Hall J delivered the principle judgment in the proceedings Simmons v Rockdale City Council [2013] NSWSC 1431.  An order was made that verdict and judgment be entered in favour of Alex Simmons against Rockdale Council in the sum of $928,000 and that judgment be in favour of the Club.

Mr Campbell SC and Mr Sheller appeared on behalf of Alex Simmons and Mr Watson SC appeared on behalf of the Council.  A dispute arose between the parties as to whether the Plaintiff was liable to pay the Club’s costs and if so should they be awarded on an indemnity basis from the date of the Club’s offer of compromise or whether Mr Simmons was entitled to a Bullock or Sanderson order in respect of his costs liability to the Club.

Liability to pay the Club’s cost on an indemnity basis

His Honour observed that an offer of compromise must be a real and genuine offer Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368.

On behalf of Mr Simmons it was submitted the Club’s offer was “an invitation to surrender” and His Honour particularised the basis of that submission.

Bullock or Sanderson Order

In the event that Mr Simmons was found liable to pay the costs of the Club he should be entitled to a Bullock or Sanderson Order from the Council.  The arguments of the Plaintiff were referred to by his Honour [para 16].

Council’s Submissions

The Council accepted that it is liable for the costs of both the Plaintiff and the Club.  It however opposed the Bullock or Sanderson Order and the basis of this was referred to by His Honour [para 21]

Reasonableness of not accepting the Offer of Compromise

Hall J observed that the reasonableness of the party refusing an offer amounts to an important feature in determining whether an order for indemnity costs should be made.  The reasonableness must be assessed as at the date of the offer and without the benefit of hindsight: Barakat v Bazdarova [20102] NSWCA 140.

His Honour made a finding that given the lack of clarity on the material available to the Plaintiff as to the arrangement between the Council and the Club, he did not consider the Plaintiff’s failure to accept the Offer of Compromise can be regarded as unreasonable [para 63].

Absence of Information to Support the Club’s offer requiring capitulation by the Plaintiff

His Honour found that he did not consider the Plaintiff had acted unreasonably in not accepting the Club’s Offer of Compromise.  See Leichhardt Municipal Council v Green [2004] NSWCA 341.

Whether a Bullock or Sanderson Order should be made

His Honour referred to Gould v Vaggelas (1985) 157 CLR 215.  His Honour made a finding that it was reasonable for the Plaintiff to have sued the Club [para 79].

The conduct of the unsuccessful defendant, the Council

His Honour referred to an Affidavit sworn by Greg Walsh on 21 November 2013 which relied upon his earlier Affidavit of 26 October 2010.  Walsh referred to evidentiary statements of James Garcia a cleaner that had been employed as a contractor by the Club and also a statement of the General Manager of the Club Keith Langelaar.  Mr Walsh stated that none of those statements mentioned what he refers to as “any rationale about when and why the gate was to be open.” [para 92].

His Honour noted that Mr Walsh stated in his Affidavit to his state of belief that it was possible that the Club was instructed in a manner that constituted a more formal delegation as to why the gates needed to be opened and closed at certain times and that it embraced that responsibility.    As such there was a real issue as to whether the Council had effectively delegated to the Club the opening and closing of the boom gate.  Mr Walsh referred to Mr Lay’s evidence.  [paras 91-98].

His Honour ultimately was not satisfied that in the circumstances and at his discretion a Bullock or Sanderson Order ought to be made against the Club.

Reid v Wright [2014] NSWSC 1110

In this matter Greg Walsh acted for Christine Reid who claims damages for professional negligence against her former solicitor, Diane Wright.

The proceedings were commenced by statement of claim filed in the Supreme Court Sydney on 2 August 2013. By Notice of Motion filed 30 June 2014 the Defendant, Diane Wright sought an order that the proceedings be transferred to the Supreme Court of Queensland. The application was brought pursuant to s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987.

The application was heard by McCallum J. McCallum J observed that the principles to be applied in determining an application under the cross-vesting legislation was considered by the High Court in BHP Billiton Ltd v Schultz [2004] HCA 612; (2004) 221 CLR 400.

The Plaintiff retained the Defendant between February 2008 and February 2011 to act for her in respect of a property settlement with her ex-husband. Ms Reid alleges that Ms Wright failed during that time to give advice as to the importance of instituting proceedings promptly and to take steps otherwise to protect her interests. The legal service was to be provided pursuant to the retainer were in the area of family law, which is governed principally by Commonwealth legislation. Ms Wright’s retainer was terminated in February 2011.

After the determination of the retainer a dispute arose as to the payment of Ms Wright’s fees. Ms Wright alleged that Ms Reid initially agreed to pay her fees as assessed in a “short form assessment” but that, after the assessment had been completed, she reneged. That dispute is the subject of the in the Magistrates Court of Queensland.

Her Honour noted the submission made by Mr Sheller on behalf of Ms Reid that there was significant unexplained delay in seeking a transfer. He relied upon r 44.5 of the Uniform Civil Procedure Rules 2005. Mr Curtin SC who appeared on behalf of Ms Wright contended that rules of court ought to be applied with a degree of flexibility.

McCallum J observed that the rule plainly contemplates that parties should ordinarily turn their minds to the issue of cross-vesting as soon as practicable after the commencement of the proceedings. That was not to say that it would be inevitably fatal to the success of a cross-vesting application but nevertheless it is an important matter to be taken into account.

Mr Sheller submitted to Her Honour that a cross-vesting application calls for a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.

McCallum J concluded   in the interests of justice the Supreme Court of New South Wales was the more appropriate court to determine the proceedings.

Turia Pitt and RacingThePlanet

Greg Walsh acted for Turia Pitt who was injured in a fire while competing in an Ultramarathon in the Kimberley region of Australia. Mr Walsh commenced proceedings and the case against RacingThePlanet was resolved on confidential terms satisfactory to both parties.


ABC News – Ultramarathon runner Turia Pitt, burnt during race in Kimberley, WA, reaches multi-million-dollar settlement.

The Guardian – Ultramarathon burns victim Turia Pitt settles with race organiser.

R v Reynolds and Small [2010] NSWSC 691

On the night of 30 April 2008 a group of friends attended the Commonwealth Hotel in Balmain to celebrate before the pub was handed to a new owner the next day. After the celebrations 14 people in various states of intoxication boarded a working boat to travel from Balmain to Watson’s Bay in order to deliver some keys to some people.

Mr Reynolds was the ‘skipper’ in charge of navigating the boat, though he handed the boat to Mr Small to navigate. Mr Small was heavily intoxicated and unfamiliar with navigating vessels. Tragically, he crashed the boat into another vessel on the harbour which resulted in 6 deaths.

Mr Walsh acted for Mr Small at trial and sentencing. Mr Small was convicted of 6 counts of dangerous navigation resulting in death and after considering the special circumstances raised by Mr Walsh and Counsel he was sentenced to a reduced sentence of 7 and a half years with a non-parole period of 5 years.

A full copy of the judgement can be read here

 

Motor Vehicle Accident – MV as next friend for MM and SM v D

On 4 August 1996 MM was a passenger (in utero) that was driven by her father and had been built, rebuilt and modified as Hot Rod.

The vehicle was being driven on an outer Western Sydney Road and whilst being driven by D in negotiating a right hand bend on the roadway he lost control of the motor vehicle and SM suffered catastrophic injuries.

SM was admitted to WestmeadHospital where she underwent emergency surgery.  She suffered horrific injuries including a brain injury and as a result was rendered totally blind.

MM was delivered by Caesarean Section suffering from Hyaline Membrane Disease, Intraventricular Haemorrhage and associated Hydrocephalus.    These conditions were causally related to her prematurity (25 weeks) and extremely low birth weight (714g).

MM remained as an inpatient at WestmeadHospital from the date of the accident until 14 October 1996.  She suffered from Post-haemorrhagic Hydrocephalus, Periventricular Leukomalacia, chronic lung disease and Retinopathy of prematurity.    Her mother remained in WestmeadHospital for nine months.

MM was eventually discharged into the care of devoted grandmother MV who had the onerous task of not only caring for her catastrophically injured daughter SM, but also her grand-daughter MM.

MV applied herself in an absolutely devoted way to the ongoing care and support of her tragically injured daughter and grand-daughter.

Greg Walsh was instructed to act for SM and MM.  The next friend was MV.  As a result of the devoted efforts of MV and due to intensive rehabilitative treatment SM was eventually able to live with her mother and daughter in the most difficult of circumstances.  Her disabilities were such that she required constant care and ongoing rehabilitative treatment.

MM experienced neurological problems including a blocked shunt.  She underwent operative care by her very experienced and devoted neurosurgeon, Dr Chaseling.

MM suffered from Cerebral Palsy and significant difficulties with her gait.  She was treated by many specialists and gradually improved due to the devoted efforts of these medical and other practitioners.

In time and indeed over many years MM gradually improved.  This no doubt was not only due to the tremendous efforts of her doctors and other specialists but the absolute devotion of her grandmother.

As a result of the complex nature of MM’s injuries and disabilities and despite proceedings being instituted in the Supreme Court relatively shortly after the accident, MM’s matter was not resolved until February 2014.  Thus Greg Walsh in effect had been acting for MM for approximately 16 years.

Although there were complex issues as to causation the matter was eventually resolved for an amount of $4 million plus out of pocket expenses.

AA v BB [2013] NSWSC1956

In this matter Greg Walsh acted for AA in a hearing before Barr AJ in the Supreme Court of NSW.

The Plaintiff is the daughter of the Defendant and CC.  She is now 19 years of age.  The Defendant began sexually interfering with the Plaintiff when she was five and continuing until she was twelve.  Plaintiff sought aggravated and exemplary damages, interest and costs.

The Defendant agreed with the facts pleaded including those relevant to aggravated damages.  He also agreed that exemplary damages were appropriate.

Barr AJ set out the particulars of the assaults pleaded including the effects on the Plaintiff.  His Honour acknowledged that the effects upon the Plaintiff had been profound and in particular noted the impact of the abuse upon the Plaintiff’s capacity to maintain relationships including her sibling and her mother.

His Honour noted the tragic history of the Plaintiff including attempting to kill herself by cutting her throat.  She was saved in emergency surgery but was committed to the care of mental health services.  Since 2011 the Plaintiff has suffered seizures and has descended into coma.

A report of Dr Colette Hourigan was entered as was a lengthy report of Dr Patricia Jungfer.

His Honour awarded the Plaintiff damages as follows:

  • General damages $200,000;
  • Future medical expenses $75,000;
  • Future economic loss $250,000;
  • Aggravated damages $100,000;
  • Exemplary damages $100,000.

Total $725,000.