Once upon a time, people were responsible for their own actions. If they injured themselves, they had to suffer the consequences. In recent times, citizens of Australia have been forced to bear responsibility for the actions of others, no matter how idiotic or foolish they are. This is called "Duty of Care" and many courts have handed down verdicts that place the fault of people's stupidity onto others.
There have been cases where people drank themselves into an alcoholic stupor, then hours later suffered accidents but subsequently managed to shift the blame for their injuries onto the venues that sold them the alcohol all that time ago. These drunks did not seem to comprehend that nobody held a gun to their heads and forced them to buy and drink alcohol, especially the amount that rendered them incapable of conducting themselves safely. However since the deregulation of the legal profession that allows lawyers to tout for compensation cases, the incidence of such ludicrous claims has skyrocketed.
The USA leads the field for crazy compensation cases and a recent very well-publicised matter was that of Stella Liebeck, who purchased a hot coffee from a drive-through McDonald's store and spilled it on herself while trying to drink it and drive. She sued McDonald's and was awarded US$2.9 million by a jury, even though she would have been very aware that the coffee was hot and that she should have not tried to drink it while driving. On appeal, this amount was subsequently reduced to US$640,000, however by rights, the case should have been dismissed from the start. Many people would say "Only in America" when they hear of such cases but many other countries, including Australia, have caught the litigation disease in a major way.
Fortunately some sanity prevailed in March 2002, when a similar case brought by 36 people against McDonald's in London was dismissed. High Court Justice Richard Field said that McDonald's customers should know coffee and tea is served hot and can burn them if it spills. He also stated that McDonald's had no obligation to warn customers about the risk of scalding. Field ruled that McDonald's customers would not accept coffee and other drinks if they were served at temperatures so low as to prevent scalding.
"Although McDonald's owes a duty of care to those who visit their restaurants to guard against injury, that duty is not such that they should have refrained from serving hot drinks at all," said Justice Field. He added that the safety of hot drinks sold by McDonald's met the general expectations of the public. "I am quite satisfied that McDonald's was entitled to assume that the consumer would know that the drink was hot and there are numerous commonplace ways of speeding up cooling, such as stirring and blowing," he said. However such bouts of sanity by judges and juries are quite rare and there is a steady stream of lawsuits involving the awarding of quite unjust and ridiculous amounts of money to people who have injured themselves by their own negligence or sheer stupidity.
In March 2005, several dozen European victims of Asia's tsunami disaster filed a lawsuit demanding that Thai authorities, United States forecasters and a French hotel chain prove that they reacted adequately, in what is believed to be the world's first claim from the tragedy, their lawyers said. US lawyer Edward Fagan and two other lawyers filed the suit with a New York district court on behalf of more than 60 plaintiffs from Austria, Germany, the Netherlands, Switzerland and France.
They suit was filed against the Thai Government, the US National Oceanic and Atmospheric Administration (NOAA) and its Tsunami Warning Centre and the French hotel group Sofitel, said Herwig Hasslacher, one of the group's lawyers.
The plaintiffs accused Thai authorities of not releasing information about the impending sea wave as soon as they received it, arguing that a more prompt alert would have saved thousands of lives. They also accused the NOAA, whose Hawaii-based warning centre covers only the Pacific, of not informing Indian Ocean states of the tsunami even though they had registered the seaquake.
The French group Sofitel was accused of knowingly building a hotel on a fault line, failing to inform parents of the victims and failing to repatriate some of the victims' bodies. The lawyers said the suit was not, at present, designed to demand compensation but to uncover evidence that would prove negligence.
It is hard to believe that a court would even countenance proceeding with such a ridiculous claim. The plaintiffs would have to prove that various weather forecasters had a legal responsibility to issue warnings about various weather phenomena, whereas there was no onus on those bureaus to do anything of the sort.
This was yet another case where people decided to take legal action against others, when those others had no responsibility for the events that affected the complainants. What these idiots were actually doing was trying to sue God for the tsunami and making the various weather bureaus the fall guys. Nothing is known of the outcome, but one can only hope that these fools lost their case and had to pay a fortune in court costs.
In May 2011, two Irish bar workers on manslaughter charges after a British customer drunk himself to death were found not guilty. Hayes Hotel bar manager Gary Wright and barman Aidan Dalton had denied any responsibility for Graham Parish's death in June 2008. The father-of-two from Nelson in northern England was celebrating his 26th birthday when he died after downing at least eight shots of liquor in one glass.
Judge Thomas Teehan found that although both Wright and Dalton had breached their duty of care, no jury could safely bring in a verdict of guilty on either man. The case was the first of its kind under Ireland's liquor liability laws.
The court had heard earlier that Parish had been drinking Guinness for more than three hours before a vodka shot was poured into his pint glass, that he then drank in one go. Following that, some competition went on, and he said he could down 10 spirits in a pint glass before his colleagues could down their pint. The barman filled it up, asked the manager and the manager gave the OK. He downed the drink in one go. Wright and Dalton faced up to life in jail if convicted.
The whole politically correct concept of duty of care is ludicrous, because it forces people to be responsible for the idiocies of others. One can understand adults having to be responsible for children placed in their care, however no adult should ever be held responsible for the stupidity of another adult under any circumstance whatsoever.
In this particular case Graham Parrish voluntarily drank himself to death. Whether the barmen sold him the drinks is completely immaterial, because the hotel has a legal right to sell alcoholic beverages and that's exactly what it did. Barmen and publicans should not be forced to be policemen and if a customer hands over money to buy a drink, then the hotel has the right to sell it to him, regardless of the consequences that the customer brings upon himself.
It is the same principle as trying to hold a gunshop legally liable for the suicide of a person who purchased a gun with all the correct permits and then shot himself to death with it. Or holding a car manufacturer liable for the death of a person who hooked up a tube to the exhaust of his car and committed suicide by inhaling the carbon monoxide. The bottom line is that every adult is fully responsible for his own voluntary acts and if they result in self-harm or death, then nobody else is to blame. At least in this particular case, the judge showed commonsense, despite the stupid liquor liability law that he had to administer.
In 2005 in Britain, greyhound trainer Graham Calvert gambled more than £7.5 million on football, golf and horse racing with bookmaker William Hill in an 18-month spree beginning in August 2005. However, in February 2008, Calvert launched a £2 million lawsuit against the bookmaker for the losses he incurred after allegedly asking to be barred.
Calvert claimed that William Hill offered him what is known as "self-exclusion", under which the bookmaker agrees not to accept any bets from a customer for a set period - in his case six months. But within two months, Calvert claimed that he was able to set up a new account in his own name and start gambling again. Since then, he placed more than £3.5 million of bets, losing more than £2 million.
Calvert's court action was aimed at making legal history by getting a judge to rule that William Hill was negligent in allowing him to continue betting. Calvert claimed that if he had the gambling problem and did not do anything about it, then he would be totally responsible, however because he allegedly asked to be self-excluded but was allowed to then open another gambling account, then the bookmaker was legally responsible for his losses.
Apart from the sheer idiocy of such court cases of gamblers suing casinos and bookmakers for their losses, there are many questions that need to be answered. Firstly, did the casino or bookmaker hold a gun to the gambler's head and force him to continue gambling or was it the gambler's free choice to do so. Obviously casinos and bookmakers do not indulge in such illegal or coercive behaviour, therefore if a gambler makes his own way to a casino or bookmaker and freely lays bets and suffers the consequences, then the gambler has only himself to blame.
The other very obvious question in regard to such court cases is whether the gambler would be suing the casino or bookmaker if he had won during the time he had self-excluded himself. For instance if Graham Calvert had won £2 million during his self-exclusion period, would he be obliged to return this money to the bookmaker because he obtained it during that period when he should have never been laying bets?
Logic dictates that if Calvert thinks that the bookmaker is responsible for him losing that money during that period, then if he had won that money instead, he would be obliged to refund it. Of course it wouldn't even have crossed Calvert's mind to do that. Would Calvert defend himself in court and fight to keep his winnings if the bookmaker launched a lawsuit against him to recover any money he won while being on a self-exclusion period?
One can only imagine that Calvert would consider that he won the money fair and square and should be allowed to keep it, but if, as in this particular case, he lost the money, he felt that the bookmaker was to blame and he should be recompensed for his losses. But not surprisingly, to this day there has never been a case of a gambler voluntarily refunding winnings that he obtained while under a self-exclusion period.
Fortunately, Graham Calvert's lawsuit against William Hill was dismissed. Justice Briggs ruled that the bookmaker owed Graham Calvert no duty of care despite the self-exclusion policy. The judge said that although William Hill did agree to exclude Calvert from telephone gambling and failed to take reasonable steps to do so, pathological gambling would still probably have led to his financial ruin, but over a longer period of time.
In August 2010, a US federal judge ruled that a man who said he was psychologically dependent and addicted to an online video game could proceed with some of his lawsuit against the game's South Korean manufacturer.
Craig Smallwood said that "Lineage II" left him unable to function independently in daily activities, such as getting dressed, bathing or communicating with family and friends. Smallwood said he had spent more than 20,000 hours playing the multiplayer online role-playing game since 2004.
Smallwood stated that NCSoft Corp. never warned him about the danger of game addiction. A Honolulu law firm that represents the company urged that the case be dismissed, but US District Judge Alan Kay allowed half of the eight counts to continue.
This whole case is insane. How on earth can this fool be allowed to take legal proceedings against anybody for his own failings? Nobody held a gun to his head and forced him to play some lousy computer game. And why should the maker of this game warn anybody about anything? In fact, any activity can be addictive. Should there be warnings about addiction on soccer balls, yoyos, TV sets, computers, coffee or anything else? Of course not, because this would be utter stupidity.
But what is really stupid about this matter is not the idiot who is suing the Korean game maker for his lack of self-discipline, but the cretinous US judge that didn't throw his moronic lawsuit in the garbage on the spot, but allowed it to proceed. One can say "only in America" but unfortunately the litigation disease has infected Australia as well
One of the most preposterous travesties of the duty of care syndrome occurred in June 2000 when the Victorian Education Department was successfully sued for a huge sum of money because a teacher failed to notice that one of the students was being sexually abused at home. Nothing was said by the student and there were no physical signs of molestation, however the hapless teacher was somehow expected to deduce from the student's behaviour that she was being molested.
It is hard enough for teachers just to teach without being press-ganged to be counsellors, psychiatrists, clairvoyants and policemen. These extra unwanted roles should never be part of their jobs, however if they do not fulfil the preposterous and very unfair demands placed on them, along with a duty of care for incidents totally beyond their control, teachers and their employers leave themselves open to very punitive litigation under the current idiotic legal standards. What happens to students outside the school is not and should not be the business of teachers.
The right to properly discipline and control students has been totally removed from teachers, so if incidents occur on school grounds such as fights, teachers are literally powerless to intervene. For instance, teachers are not permitted to touch students, because if they do, they expose themselves to be charged for assault. Therefore if a teacher grabs a student to prevent him continuing to fight, that teacher can not only be charged with assault, but can be sued for damages. In fact in most NSW schools, teachers are specifically instructed not to lay hands on students under any circumstances. However, teachers can be held responsible for any detriment that is caused to students, even though in most instances they are powerless to act to prevent the detriment from occurring.
For their own financial and legal well-being, teachers should refuse to take responsibility or assume any duty of care for any aspect of their jobs that is beyond their control. They should insist that their duty of care only extends to their work activities at school and certainly nowhere else, such as what happens to students once they leave school premises. They should adamantly refuse to be saddled with any duty other than teaching.
In this ridiculous age of political correctness, parents find their authority to raise their children with some modicum of authority and discipline has been eroded by governments and stupid illogical ideologues, who obviously have no grasp of the real world. In Australia, the government reinforces the growing impotence of parents to discipline errant children by giving them legal vehicles to flaunt the authority of their parents. In other words, governments take away the power and authority of parents over children, yet demand that those parents carry responsibility for the actions of those children, even though the parents have no way of controlling them.
Parents are no longer able to smack their naughty children, even though small children do not understand verbal argument based on logic. If parents smack their unruly children, even after entreating them to act for their own safety and the comfort of others, those parents could easily find themselves before the courts on charges of assault. When children then realise that their parents are unable to administer some mild corporal punishment to keep them in line, those children will continue to transgress and grow up with a lack of discipline that may lead them to succumb to bad habits, drug addictions or a life of crime, but of course the parents will be blamed for this, even though their power to raise those children with discipline has been removed.
As an example of the moronic idiocy of politically correct policies that undermine the authority of parents over their children, the following report from the Daily Telegraph literally says it all.
How crazy is this? How the hell can a court undermine a father's authority over a 12 year old girl under his care? If this case is not completely overturned, all children in Canada will have a legal precedent to completely defy any directives given to them by their parents, however any damage done by those children or crimes committed by them will certainly be held against those same parents. The judge who made this completely asinine ruling needs to be removed from any sort of judicial position on the grounds of absolute incompetence and lack of logic and knowledge of the real world.
The father should also do something about his daughter, because obviously she has no respect for him, as she went to the extent of dragging him to court for merely grounding her. This is one instance where the father should demand that if a court of law will not allow him to assert control over his own pre-adolescent daughter, then the court can take full responsibility for raising her from that point in time. The father should kick this ungrateful bitch out of his house and have nothing more to do with her. He should tell her to go live with her mother and just get her out of his life, so that he can at least enjoy his time from this point without this millstone around his neck.
A recent case in Australia was that of a man on Queensland's Gold Coast who became intoxicated at a barbecue in a neighbour's backyard. He climbed onto the back fence in an attempt to walk along its length, but fell into the canal on the other side, injuring himself severely. He sued his neighbour on the ludicrous basis that he was tempted to balance on the fence because it had a flat top and therefore was conducive to being walked on. He claimed that if the fence had a regular pointed top, he would not have attempted his misguided feat. Harder to fathom was the fact that this idiot actually won the case and was awarded a large sum of money.
Incredibly, many people have managed to win lawsuits on the most preposterous grounds and one of the more spectacular examples was that of the prisoner in New Zealand who tried to escape from custody by scaling the very high prison wall. He slipped and fell heavily on the other side, breaking his leg. He was promptly arrested, but then proceeded to sue the New Zealand Prisons Department, claiming that they had a duty of care to inform him that climbing the wall was dangerous and that he could injure himself. One would imagine that such a case would stand no chance whatsoever of success, but obviously taking its cue from some of the stupid decisions made in USA and Australian courts, a New Zealand court awarded this criminal nearly $20,000 compensation.
There have been many incidents where good Samaritans have stopped to render assistance to accident victims and then have been sued for their "interference" amid claims of causing some injury to the victims, thus also becoming victims in the process. In this climate of spiralling litigation, it is therefore not surprising that nowadays most people ignore accident or mugging victims, lest they find themselves being defendants in massive lawsuits.
Another totally preposterous matter came before the courts in April 2007, when a woman was awarded nearly $240,000 compensation from Railcorp after a judge ruled she was raped because she had broken her ankle weeks earlier at a Sydney railway station. District Court Judge Michael Goldring found that Railcorp was partially responsible for the woman's rape at a private home because she could not escape with her leg in plaster.
The 36-year-old Taiwanese television reporter, Yu-Mei Chu, had been in Sydney to learn English when she lost her footing on slippery stairs at Sydenham rail station in December 2002. A few weeks later, while still on crutches with her leg in plaster, she was sexually assaulted and beaten at a man's home. She told the court she could not get away because of her broken ankle. She became depressed after the assault, lost her will to socialise and her hair turned grey.
Judge Goldring found she would not have been sexually assaulted if her ankle had not been in plaster. Now how ludicrous is that? How could this judge have come to such an illogical conclusion, assuming that the victim could have escaped her rapist if she had been fit and healthy at the time? The short answer is that this judge somehow made a supposition without any logical foundation whatsoever. How many women who are fit and healthy and do not have their legs in plaster are raped? Does this crazy ruling assume then that women who are fit and healthy should never be able to be raped because they should be able to always escape their attackers?
Not only that, in support of this claim, this woman also stated that she was concerned about her inability to marry and have children. What has the fact that she broke her leg at a railway station have to do with her fertility? She didn't break her womb. Also, what has any of this got to do with her inability to marry? She is 36 and whether she had been married before or not, none of this has anything to do with her eligibility. Plenty of women who have been raped have married afterwards. It is obvious to any reasonable person that if she felt unable to marry, this is purely her own personal problem and cannot and should not be relevant to a broken leg or a rape some weeks later. However, if this woman feels that she should get compensation for her alleged inability to marry and have children because she was raped, she should have sued the rapist, not Railcorp.
The reasons for the judge's decision favouring this woman are most suspect and they set a very dangerous precedent. Does this mean that if years ago, a man suffered a whiplash injury in a car accident and then that man is then assaulted years later and claim that he could not defend himself because his neck was sore, can somehow sue the person who ran into the back of his car so many years ago and blame him for the assault so many years later? This sort of court decision is what gives our legal system a bad name.
This lawsuit by Yu-Mei Chu should have never seen the light of day in the first place, but even though it did, the ruling by Judge Goldring is so preposterous and unfair that it beggars the imagination. Although one must have sympathy for the raped woman, this ludicrous decision should be overturned purely on principle and to disallow such a crazy legal precedent to be set.
One of the most unworthy cases to come before the courts was the lawsuit of Kane Rundle, who was severely brain injured after leaning out of a train window to spray graffiti onto the outside of the train. Apparently he had forced the window open by removing rubber beading that was in place to prevent the window being opened to any huge extent, then leaned out to commit his act of vandalism, whereupon he was struck on the head by a steel stanchion. Rundle sued the State Rail Authority for more than one million dollars, claiming that the SRA breached its duty of care in not preventing him from opening the window and leaning out.
One can only marvel how such a case could even get to the point of being filed, let alone proceed to a court hearing. Even an imbecile would realise that leaning out of a window of a moving train is highly dangerous, but Rundle committed this lunacy voluntarily, knowing that it was wrong and stupid. Not only that, he committed an act of vandalism on the train window so that he could commit yet another act of vandalism by spraying graffiti onto the train. For Rundle to have the temerity to then blame somebody else for damage suffered in the commission of his crimes and try to sue them is in itself an act of blatant bastardry.
Was Rundle also seriously trying to get the court to believe that the SRA should send a minder to accompany every train traveller? As Rundle was severely brain injured from his self-inflicted stupidity, one can only assume that his lawyer must have come up with this incredible ploy of blaming the SRA for not stopping Rundle from tearing apart the window and leaning out of it to vandalise the outside of the train with graffiti. Not only should this lawyer be thoroughly ashamed of himself, but he should be hauled before the Bar Association and severely disciplined for proposing such a moronic course of action to Rundle.
Fortunately in this instance the court rightfully dismissed Rundle's entire lawsuit, but his attempt at what any reasonable person could only describe as extortion cost the taxpayer dearly. There are many similar cases before the courts and probably not one of them should be allowed to proceed. In fact there should really be laws preventing such cases from even commencing, as these matters not only tie up the courts and delay cases that do have merit, but cost the taxpayers a lot of money in wasted court time. It is nice to see that a ray of sanity occasionally gleams among the many idiotic decisions made in the courts.
For instance in 1995 on Perth's Cottesloe Beach, bodysurfer David Prast was dumped by a wave and was left a quadriplegic. He sued the local council for breaching its duty of care towards him by not posting signs warning of the dangers of bodysurfing. The District Court ruled that Cottesloe Council had not breached its duty of care and could not be held responsible for the accident. Prast launched an appeal in the Supreme Court, however it was also dismissed in September 2000 on the grounds that the risks of bodysurfing should have been obvious. In this all too rare instance, the courts made the only logical and sensible decision possible.
Although one cannot help feeling sorry for Prast, who has been reduced from a fit and active man to a total cripple, the facts are that all sports have inherent dangers and participants must take responsibility for any accidents or injuries they sustain. Rugby players often break their necks in scrums, resulting in quadriplegia. The late well-known actor Christopher Reeve became a quadriplegic after falling from a horse. The truth is that the risks of sustaining injury in sport are very real, so to blame others and to sue them is most unfair. In taking up the sport of bodysurfing, Prast should have ascertained the risks, but he tried to abrogate his own responsibility and shaft it onto the local council. Fortunately the court had enough sense to dismiss his nonsensical claim for compensation.
Some judges do have a modicum of commonsense when dealing with unworthy claims. For instance a man whose leg and arm were severed when a train ploughed into him was left with a huge legal bill after a judge ruled he was the author of his own misfortune. Jason Scott Prouse, a 34-year-old steel fixer from Tuggerah, had sued the State Rail Authority (SRA) over an accident on 15 November 1991, which happened after he got off the train 500 metres from Newcastle station.
Prouse was claiming millions in compensation, accusing the SRA of negligence by opening the carriage doors which allowed passengers to disembark. He also claimed train drivers who saw him and his mates on the tracks could have averted the accident by braking in time or sounding a warning from the Sydney-bound train before it struck him. The SRA argued it could not be held responsible for passengers leaving the train early, as the doors had to be forced open by passengers. This was denied by Prouse's witnesses. The train driver also could not be blamed as he would not have avoided the victim even if full brakes were applied.
NSW Supreme Court Acting Justice Peter Newman, who found Prouse had been drinking before the accident, said that the SRA was not liable. The driver's action in sounding the horn and switching headlights on as soon as he noticed people leaving the train was entirely appropriate, Acting Justice Newman said. He also found eyewitnesses, called by Prouse, who testified the doors were open were unreliable. He ordered Prouse, whose left arm and left leg were amputated after the accident, to pay all legal costs.
Although Prouse will spend the rest of his life as a cripple, he must take full responsibility for his predicament. If he forced the train door open, he should not have done so. The train was not on fire. He should not have disembarked from the train until it had been taken to a station and he should not have been on the tracks. It was patently obvious who was at fault, however in these days of trying to shaft the blame onto others for one's own actions, this case went all the way to the Supreme Court, costing much money and wasting valuable resources, where it should not have proceeded past an initial hearing to determine responsibility.
Another blatant instance of trying to blame somebody else for a self-inflicted catastrophe was demonstrated in the courts in 2007. Blue Mountains man Timothy Walker tried to sue Sydney West Health Service for negligence after he was left a quadriplegic after falling from a tree in an aborted suicide attempt. In 2001, the then 19-year-old climbed a tree to hang himself, just 11 days after being discharged from the Pialla Unit, a psychiatric wing of Nepean Hospital, following a previous suicide attempt. Walker had consumed at least two bottles of beer that afternoon and spoke of ending his life.
His brother tried to demonstrate what the family had endured due to his sibling's mental problems by pretending he wanted to hang himself from a tree in their backyard. However, Walker grabbed the noose and climbed the tree himself. He said he experienced a moment of clarity once he got to the top of the tree. "Things just didn't seem as hard as they did before and I felt better, better than I had for a long time and so I started climbing down,'' he told the court. Unfortunately he fell to the ground while making his way down from the 10-metre high tree and fractured his spine.
On learning he was a quadriplegic, Walker told the court he felt "almost like I had lost my life, but I was still alive at the same time''. He sued the Sydney West Health Service for negligence, claiming not enough was done to care for him prior to the accident. He claimed the hospital should have prescribed him anti-depressant or anti-psychotic medication, counselled him and detained him as an involuntary patient for at least two weeks for assessment.
In handing down the only possible correct verdict, NSW Supreme Court Justice Carolyn Simpson dismissed Walker's negligence lawsuit, ruling that Sydney West Area Health Service staff had not failed to act in a competent professional manner. Justice Simpson found that hospital doctors had assessed Walker and decided not to give him anti-depressants because he refused to give up drinking alcohol, which could cause a reaction with the medication. She also found the health service conducted home visits after his discharge, during which he reported feeling better. Justice Simpson ordered Walker to pay the health service's legal costs.
A reasonable person could easily come to the obvious conclusion that this was nothing more than an attempt by Walker to extort a large sum of money from West Area Health Services for a completely self-inflicted injury, compounded by his consumption of alcohol. Fortunately the judge also came to the right conclusion and threw the case out. However, in most of these cases, there is the obvious problem of how the real victims, the defendants, are going to be compensated for the massive legal costs that they have incurred. Unless Walker happens to be extremely wealthy, which is highly unlikely for a 25-year-old quadriplegic, West Area Health Services will have to pay a fortune in legal fees for defending itself in this totally worthless lawsuit.
An example of a completely worthless lawsuit tying up valuable court resources and costing the state a fortune occurred when problem gambler Behrouz Foroughi sued Star City Casino for $600,000. Foroughi had asked the casino to place him on an exclusion list, banning him from casino premises. The exclusion order, signed by Foroughi, stated that he recognised that he had a gambling problem and that the order did not place any obligation on anybody but himself to remain away from the casino.
However, after Foroughi signed the exclusion order, he went to Star City Casino at least 65 times and gambled away a fortune. He then decided to sue the casino to try and recover his losses, claiming that Star City had failed in its duty of care to take reasonable steps to prevent him from entering the gambling areas of the casino and also failed to remove him on 40 occasions from June 11, 2004, less than a month after he had asked it to bar him. This lawsuit was obviously doomed from the beginning, simply because Foroughi himself deliberately violated the exclusion order and went to Star City so many times, knowing that he had a problem and that he had signed a document placing the onus upon himself to honour the exclusion order.
In the Federal Court Justice Peter Jacobson dismissed Foroughi's application for damages of more than $600,000 from the casino. "Any loss suffered by Foroughi was caused, not by Star City, but by Foroughi's deliberate and voluntary conduct in entering the casino and gambling in breach of his written undertakings. In the ordinary case, a gambler who enters a casino in breach of a voluntary exclusion order and suffers losses will have no redress in the form of a damages claim against the casino" Justice Jacobson said. In rejecting all of Foroughi's claims, the judge stated, "Foroughi expressly and voluntarily undertook responsibility for his own conduct in agreeing not to enter the gaming areas of Star City and to seek the assistance and guidance of a qualified and recognised counsellor."
This is a classic example of a person who not only refused to take personal responsibility for his own voluntary actions, but sought to make another party pay for his foolishness, as well as his losses. Did Star City put a gun to Foroughi's head and force him to get out of bed, get dressed, go all the way from his house to the casino to gamble against his will? Was Star City responsible for Foroughi going to the casino at least 65 times after he had signed the exclusion order? The answer obviously is a big fat NO. But Foroughi alleged that Star City was negligent in not stopping him entering the casino. To try and blame Star City for his own deliberate actions, Foroughi sought to abrogate his personal responsibility and shaft the blame onto the casino for his own stupidity. At least the judge saw the worthless nature of Foroughi's claims and threw them out and ordered Foroughi to pay Star City's legal costs.
In fact, the judge really should have also hit Foroughi with substantial punitive damages to compensate Star City for the huge waste of time and resources that the casino would have spent in defending the case. Even full indemnity costs rarely cover the expenses that successful defendants incur in fighting off lawsuits, so this pathetic episode would have cost Star City a huge amount of money for no good reason. If litigants with frivolous claims knew that they would be burdened with huge punitive costs if they proceeded with worthless lawsuits, they might think long and hard before embarking on such adventures.
However, like many similar and equally worthless lawsuits, this matter should never seen the light of day, let alone get past the preliminary stages to the point of an expensive hearing in the Federal Court. There should be a legal mechanism to examine civil lawsuits and only allow them to proceed if they have some merit. There is currently a provision where a litigant with a perceived worthless case may be forced to lodge a guarantee to compensate a defendant, however this is rarely exercised, because the legal system tries to ensure that every citizen is allowed his day in court, even with worthless cases.
Just to highlight the utter stupidity of people, in 2007 Star City Casino reported that at least 224 problem gamblers who had banned themselves under the self-exclusion scheme, had been caught back at the casino. None of these people were dragged forcibly to the casino and they had voluntarily banned themselves from the premises because they were very aware that that they had gambling problems. For any of these people to even contemplate blaming the casino for anything whatsoever would be ludicrous, but in this era of looking to shaft the blame of one's own voluntary stupidity onto others, more lawsuits without any merit whatsoever will surely be launched against Star City.
However, the system does not seem to take into consideration the effect that worthless cases have on defendants, who generally lose a lot more than any costs they are awarded, even though the cases against them may be complete garbage. If a case was as worthless as that of Behrouz Foroughi against Star City Casino, it should have been prevented from proceeding right from the start. This would have saved Star City from being persecuted by a worthless case and costing the casino a fortune in defending itself and it would have even saved Foroughi from throwing away another fortune in legal expenses in running the lawsuit to its very obviously doomed conclusion.
Of course it is completely unimaginable that Foroughi would have launched legal proceedings against Star City if he had sneaked into the casino while banned and won a substantial amount of money instead of losing. Would he have refunded those winnings because he received them illegally? Of course he would not, but this just highlights the complete lack of merit of his legal action and why it should have never been allowed to proceed.
In an amazing court ruling, Melbourne's Crown Casino chiefs were ordered to go to trial over claims they allowed a banned problem gambler to lose $30 million. Victorian Supreme Court Justice David Harper ruled that Crown Casino had a case to answer in its dispute with millionaire Gold Coast property developer Harry Kakavas.
Kakavas alleged that he lost $30 million playing baccarat in a 14-month gambling spree starting in June 2005. The self-confessed gambling addict claimed he had excluded himself from the casino but was lured back in a plan hatched by chief operating officer John Williams. He sued Crown and Williams for the $30 million he said he lost, plus damages.
In his submissions, Kakavas alleged that he was flown about 30 times on Crown's VIP jet and was regularly handed bags and boxes of cash containing up to $50,000. Crown denied any wrongdoing. Kakavas claimed that the casino was guilty of unconscionable behaviour because they knew he was a problem gambler, yet the casino put temptation in his way.
Kakavas told the Victorian Supreme Court that he moved to the Gold Coast in the early 1990s to gamble full-time, mainly at Jupiters Casino. But the opening of a casino in his home town in 1994 lured him back. He said he wanted to be "part of the action" at the new temporary casino at Melbourne's World Trade Centre. So it seemed that Kakavas was alleging that Crown Casino was at fault for its mere existence because it opened up and lured him back to Melbourne.
Kakavas has an interesting gambling history. He started out betting small amounts, but the bets got bigger and bigger. He gambled at Crown every time he had access to money, often arriving at the Casino at 10 or 11 in the morning and staying until midnight. His small bets often turned into $50,000, $60,000 or even $70,000, but Kakavas stated that he could "never retain the money and could never find the door". So according to Kakavas, it seemed that he alleged that this was Crown Casino's fault too.
Kakavas also told the court his borrowed money from friends and family, including about $50,000 from his parents to fuel his growing gambling habit, all the while trying to keep it a secret. He said he became addicted to baccarat and ran up a debt of more than $47,000 at Crown Casino which he later managed to pay off in instalments. However in 1994, his gambling led to problems with the law. He pleaded guilty to eight counts of obtaining property by deception after defrauding a finance company and spent four months in jail in 1998. So whose fault was it that Kakavas committed crimes? Did Crown Casino put a gun to his head and force him to defraud somebody? Of course not. It is obvious that if Kakavas embarked on a criminal adventure, it was his responsibility entirely.
This whole case was truly astonishing, simply because Kakavas was not forced to gamble, whether or not somebody offered him free transport or money to go to Crown Casino. He knew that he had a gambling problem and he was very aware that he had banned himself from the casino. All Kakavas had to do was to say "No thanks" to any offers from Crown. But Kakavas didn't do so - he accepted the free rides and the money and he willingly went to the casino from which he had voluntarily banned himself. That should have been the end of the matter, however again, the state of Victoria bore much of the cost of pandering to a person who knew he was doing the wrong thing, yet went ahead and voluntarily did it on many occasions.
The claim by Kakavas of unconscionable behaviour by the casino is ludicrous. One could make a similar claim against supermarkets that place chocolates and sweets at eye-level to tempt people who might be already obese and who should not purchase and consume such junk food. There are no cases of grossly obese people suing supermarkets for unconscionable behaviour for tempting them with consumables that will make them even more obese and that might even lead to their deaths. Obese people are not forced to purchase rubbish that will make them fatter, even if that rubbish is in front of their faces every time they go shopping.
What many people would be wondering about this case and all the other cases involving problem gamblers suing casinos, is whether they would still be suing those venues if they had won money, not lost it. If for instance Kakavas had won $100 million from Crown Casino during the time he had voluntarily banned himself, would he have refunded his winnings to the casino because he had done the wrong thing by violating his own self-exclusion directive? Of course he wouldn't - he would be ecstatic. It is only because these people lose, that they seek to blame others for their own failings and this is so wrong that these cases should never see the light of day, let alone go to trial.
In a moment of sanity, on 08 December 2009, Justice Harper of the Victorian Supreme Court dismissed this lawsuit and ordered Kakavas to pay the casino's court costs, as well as $1 million for a dishonoured cheque that he presented to the casino.
Justice Harper concluded that at any stage during the 14 months in which he gambled almost $1.5 billion, Kakavas could have used the casino's self-exclusion program to protect himself from his pathological addiction. Instead, he used it as a threat to get a better deal from Crown. Justice Harper stated that Kakavas's gambling addiction was irrelevant because he could match Crown in negotiating the terms on which he would play there.
Justice Harper said the law must be careful before it forces one person to nullify a free choice made by another and it should not treat gambling losses as a loss to be recovered in a court. Casinos did not have any general duty to protect gamblers from themselves, he said.
It was reported in June 2010 that Crown casino had moved to bankrupt Kakavas after he lost his court bid to sue the Casino. The action came after a Victorian court dismissed his multi-million-dollar action and upheld the casino's $1m counter-claim for the repayment of funds advanced during his patronage. Kakavas is appealing against the decision.
In a recent appearance before the Supreme Court of Victoria's Court of Appeal, Kakavas's legal counsel revealed that his client did not have the funds to meet the judgement debt and would be bankrupt in the absence of a successful appeal. The court was told that his personal debts exceeded $50 million, with money owed to various casinos worldwide, former business partners, family and friends and the Australian Taxation Office. His company, Elite Property Investment Group, is in the hands of a court-appointed liquidator, after an application by the tax office, while a second casino operator, the Bahamas-based Paradise Enterprises, is also bidding to have Kakavas wound up. The result of this action will be reported here when it is made available.
In 2010, Kakavas tried again to use the ploy that he was a pathological gambler to try and get out of repaying a $1.2 million debt to the Atlantis Paradise Island Casino in November 2006. Justice Jennifer Davies found there was no merit in Kakavas's claim that the casino knew he was a pathological gambler and should not have extended a line of credit of $US1.013 million.
Justice Davies stated that there was nothing "to put the casino on notice that Kakavas may have suffered from a serious disability affecting his judgment and control over his gambling activities''. She said that it was significant that a credit search Atlantis made on Kakavas did not disclose he had excluded himself from any casino. No credit or other issues had come to the attention of the Atlantis.
"The provision of credit by the casino was an ordinary incident of gambling activity there,'' Justice Davies said. "There was nothing untoward about a patron seeking funds from the casino to gamble and the evidence showed that the credit was given because of his good credit rating with other casinos.''
This is further evidence that Kakavas tried to make yet another casino responsible for his completely voluntary actions. Nobody forced him to go to the casino. Nobody forced him to gamble and lose $1.2 million in five hours and the casino was not responsible for his psychological problems. Casinos are businesses that are open to the public and it is entirely up to people to decide whether they wish to gamble at them. The inability of Kakavas to control his gambling urges should never be anybody else's problems and nobody should have to suffer losses because Kakavas can't control himself.
But in such instances, the same question always arises - would people like Kakavas ever complain if they had won, instead of losing? There is yet to be a court case of a pathological gambler who sued a casino or a bookmaker for allowing him to win a fortune. This is typical gambler behaviour. Gamblers think that when they win, it's due to their skill, but when they lose, it's somebody else's fault.
But not settling for losing those worthless court cases, Kakavas went all the way to the High Court to launch an appeal. However, on 05 June 2013, the High Court unanimously dismissed the appeal from a decision of the Court of Appeal of the Supreme Court of Victoria, which found Crown Melbourne did not act unconscionably.
Chief Justice Robert French held that Kakavas's gambling problem did not put him at any special disadvantage of exploitation by Crown, agreeing with the appeal court that Crown Casino was entitled to accept Kakavas as he presented himself to it, a successful businessman entirely capable of making decisions in his own interests.
Kakavas cannot take the matter any further, having now wasted the time and resources of a range of courts and costing Crown Casino a fortune in defending a completely worthless series of lawsuits. It is cases like this that should never make it to a courtroom. The simple fact is that people must be responsible for their own actions and even if Crown Casino tried to lure Kakavas to gamble, he is an adult and has the ability to refuse. But Kakavas wanted to make Crown Casino responsible for his stupidity and lack of self-control and the High Court saw right through him.
Here is an amazing example of the idiocy of our court system that allows people who commit acts of utter stupidity to profit from them. In 2002, Bryan Jones sued Dapto Leagues Club in the Wollongong District Court after sticking his finger in a live light socket and getting a severe electric shock. Originally, Jones was awarded $700, but in March 2008, the court increased this sum to a staggering $30,000. The court found he had accidentally put his fingers into the light bulb socket, despite admitting to joking just half an hour earlier that he was going to do it. In making the new order for damages, Justice Keith Mason said the shock which burnt Jones' middle finger and knocked him unconscious could not have been foreseen.
What a ludicrous thing for a judge to say? Is this beacon of the judiciary living on the same planet as the rest of us? How the hell does a normal adult not foresee the possibility of getting an electric shock if he sticks his finger into a light socket? How does any person put his finger into a light socket accidentally? The odds of doing that by chance would be millions to one, even if a person had fallen against a live electrical fitting, because the live pins in a light fitting are very well recessed. However, the fascinating thing about this particular matter is that only thirty minutes prior to being electrocuted by sticking his finger into the light socket, Jones actually joked about doing exactly that deliberately.
Clubs NSW spokesman Jeremy Bath yesterday said the decision had dealt a harsh financial blow to the club. He stated, "The trend of courts rewarding stupidity is one that sadly appears to be on the increase. It's hard to believe a grown man could be rewarded for sticking his finger in a light bulb socket. Clubs are sick and tired of being instructed to write cheques to victims of stupidity when they would otherwise be donating the money to sporting teams and charities. The people of Dapto have every right to be baffled by the court ruling, which has short-changed them $30,000."
People must really be wondering what sort of geniuses are sitting as judges in our courtrooms, when they can award large sums of money to people who deliberately commit acts of utter stupidity and injure themselves. Obviously, from some of the imbecilic court rulings made in recent years, a normal and reasonable person can have nothing but utter contempt for the entire judicial system.
Christopher Fitzsimons, a former Sydney solicitor gambled away $10 million and used his daughter's Visa card to guarantee a secret credit betting account set up for him by the TAB, the NSW Supreme Court heard in June 2008. Fitzsimons is suing the Minister for Gaming and Racing Graham West, TAB Limited and Tabcorp Holdings for almost $3.25 million in gambling losses he blew between April 2003 and June 2006.
In 2003, Fitzsimons was one of just five "high value players" offered an elite TAB credit betting account, his barrister, Todd Alexis SC, told the court. To guarantee the $5,000 account limit, he gave TAB his daughter's Visa card details, which did not provide adequate security, Alexis said. Fitzsimons also signed a direct debit form authorising the TAB to top up the betting account with funds from an account held jointly with his wife and daughter, without their knowledge. At the beginning of each week, if the credit card was in overdraft, the TAB would access the joint account to replenish the betting account.
The court heard Fitzsimons placed 7291 bets worth $4,749,324.00 between April 2003 and June 2006. Of those bets, 6246 were made when the account was in overdraft, which Alexis said was a breach of the TAB's ethical responsibility to its clients. He said Fitzsimons is entitled to restitution of $4,749,324, less dividends of about $1.5 million. "There was never a guarantee in place to secure the facility and therefore it should not have been given," Alexis said.
This is yet another instance where a person voluntarily put himself into a position of losing a fortune, but wants to blame somebody else for his own actions. In fact according to his own lawyer's statements, Fitzsimons deliberately signed an authorisation to allow TAB to transact funds in a secret account and financially guaranteed that account with his daughter's credit card. However, because he is a chronic gambler, somehow the TAB and the government are allegedly to blame.
It is the height of monumental stupidity to permit such a case to waste the valuable time of any court. Irrespective whether the TAB offered Fitzsimons an account or not, he was an adult and had the power to merely refuse any offers, let alone compounding his misfortune by placing over 7000 bets. Did the TAB force him to place those bets? Did Minister Graham West drag Fitzsimons to the TAB at gunpoint to lay bets? Of course not. Fitzsimons did all of this himself and obviously he has himself to blame. Just because facilities such as the TAB, casinos or clubs with poker machines exist does not mean that a person has to gamble. This lawsuit should have never seen the light of day, let alone waste the valuable resources of a court of law.
Fortunately, sanity prevailed and in July 2008 in the Supreme Court, Judge Robert McDougall quite rightly dismissed Fitzsimons's claims and ordered him to pay costs. Again the question must be asked - would Fitzsimons have sued the TAB and others if he had won handsomely, even knowing that there was never a guarantee to secure the gambling account? Would Fitzsimons have refunded his winnings to the TAB because of the lack of the funds guarantee of the account? Of course not. It is only when such people lose, that everybody else is to blame, but not themselves.
Two people who lost legs in separate accidents in Victoria while skylarking on freight trains want the taxpayer to pay for their injuries. Both were children when they climbed on board the trains and they claim authorities were to blame for allowing them to do so. They said that State Government authority Victrack and the owner of the freight trains, Asciano Services, were negligent. In their claims for compensation, which could run into hundreds of thousands of dollars, they say the authorities should have prevented them from being able to climb on to the trains.
Shelley Tunks, 23, of Longwood, and Thomas Bristow, 20, of East Bentleigh, were injured in separate accidents in 1998 and launched the Supreme Court actions in August 2008. They claim they now have lesser job prospects because of their injuries.
Bristow was 11 when he boarded a freight train after slipping through a hole in a fence at the Tottenham railway yards on 14 December 1998. He fell and had to have his right leg amputated and now wants damages from Victrack and the train owner. In a statement of claim he said Victrack should have been aware there was a hole in the fence and children were using the rail yard as a playground. He claimed the train driver "failed to keep a proper lookout" for children climbing on the train. Bristow had since done an automotive course, but claimed that he had limited job opportunities.
Tunks was 13 when she climbed on top of a stationary freight train at the Longwood loop near Euroa and fell as it took off on 15 April 1998. She suffered horrific injuries, forcing the amputation of her right leg below the knee. She also required surgery on her left foot. Tunks is claiming psychological injury, including post-traumatic stress disorder, pain and suffering. In her statement of claim, she said the injury meant she had limited job chances and would suffer unemployment and under-employment. A former member of the Victorian women's wheelchair basketball team, Tunks claimed negligence because children were not stopped from getting on to stationary trains. Police said at the time of the accident that Ms Tunks was on top of a flat-top goods carriage and, when it moved, she fell into the path of another train.
Although one has to feel sorry for these two people, it is ridiculous to blame anybody but themselves for their injuries. Victrack cannot patrol every millimetre of fence every day to ensure that somebody has not made a hole somewhere. Furthermore, even an 11 year old child would have realised that going into a railway yard and climbing onto trains was wrong. Bristow and Tunks claimed that the authorities should have prevented them from being able to climb on to the trains.
This attempt at abrogating responsibility is completely ludicrous and should not even be considered. For instance, if a person steals a gun, then tries to rob an armoured car and is shot by security guards, can he sue the police because they did not prevent him from leaving his house to commit this crime? Of course not, but Bristow and Tunks are asserting the same illogical premise in their claims.
But what is really wrong is that Bristow and Tunks consider that it was not their fault that they were injured, but it was the fault of Victrack, the train driver, virtually anybody but themselves. Now are now trying to wring money from the taxpayer for their own stupidity and negligence. Instead of being allowed to proceed with their statements of claims, they should be charged with attempted extortion.
Shane Scott was killed when he crashed his motorcycle while riding home from the Tandara Motor Inn at Triabunna, on Tasmania's east coast on 24 January 2002. At the time of his death, Scott had a blood alcohol reading more than five times the legal limit.
In January 2009, the Supreme Court in Hobart found the hotel and its then-licensee Michael Andrew Kirkpatrick owed a duty of care to Scott. In a majority decision, the court found the duty of care was breached and that Scott's widow Sandra should be awarded damages for her husband's death. That ruling, thought to be a first in Australia, overturned the Supreme Court's original dismissal of Scott's lawsuit in late 2007.
The court heard Scott was drinking at the Tandara Motor Inn after work. There was talk of police being in the area so he gave his motorbike keys to Kirkpatrick. But later, having consuming up to eight cans of Jack Daniels and cola, Scott retrieved the keys, rode off and literally committed suicide by crashing his motorbike while completely drunk.
Here is yet another completely insane court ruling, making somebody else carry the blame for the actions of an idiot. The publican did not hold a gun to the head of Shane Scott to force him to drink that much alcohol. Scott voluntarily bought that alcohol and drank it, obviously knowing that it would make him drunk. Then he stupidly went and retrieved his motorbike keys, rode off and killed himself. One can only hope that Scott didn't have any children so that his Stupidity Gene didn't get passed on to them.
Why should the publican be the bunny for Scott's idiocy? Could the publican have refused to give Scott his motorbike keys? If so, the publican could have been charged with theft. Could the publican have even physically prevented Scott from driving off? Of course not, as if the publican had done so, he could have been arrested for assault and deprivation of freedom. The only person to blame for Scott's death is Scott himself and the Supreme Court's ruling in this case merely shows that the law is an ass - and a gigantic ass at that.
The good news is that the publican, Michael Kirkpatrick, took this matter to the High Court, which in an amazing display of sanity and commonsense on 10 November 2009, overturned the original Supreme Court judgement. Without dissent, the five High Court judges agreed that responsibility for the actions of people lie with themselves and not somebody else. One can only hope that this case dissuades people from taking court action to try and blame somebody else for damage that they cause to themselves.
Clinton Brilley was on bail for armed robbery when he broke into a suburban sports club, intent on stealing the poker machine takings. He left empty-handed, but with a bullet wound to his back, having been shot by security guard David Bingle. Now Brilley, 26, is suing Bingle's security company in the District Court, seeking six-figure compensation.
Judge Leonard Levy heard that Brilley suffered back pain and post-traumatic stress after Bingle shot him with a revolver on 23 June 2003. Brilley and three accomplices arrived at the Earlwood-Bardwell Park Sports Club around 4:00am, planning to steal cash from the gambling room. But after using a crowbar to break in, Brilley was confronted by Bingle and shot. He claimed that as he and his gang escaped in a Subaru WRX, Bingle fired twice more, shattering the getaway car's rear windscreen. Brilley is suing Bingle's company, Presidential Security Services, for negligence and assault, saying excessive force was used during the incident.
Under civil liability laws, a court cannot award damages to someone injured during the commission of a serious offence, unless whoever injured them was committing an offence themselves. Bingle argues he acted in self-defence, telling the court last week: "I was in fear of my life."
This is the second time the case has gone to trial. In 2007, the District Court, in an amazingly asinine verdict, awarded Brilley more than $185,000 in damages, but the decision was overturned on appeal by Presidential Security Services. Brilley is behind bars until at least 2012 for an unrelated armed robbery offence, for which he was on bail at the time of his shooting. His claim includes money for future lost earnings because, as his counsel Adrian Canceri told the court: "He's not in jail forever."
Four months before the shooting, Bingle had been disarmed at the club by three masked men who threatened him with his own pistol before robbing him and the club. Bingle told the court he was nervous and surprised when he realised there were three intruders at the club on June 23, and not just the one masked man he had seen in the car park. He said he called out, "Halt, security" before firing his gun. "If I didn't use it, I wouldn't be here," he said.
it is absolutely insane that this serial criminal Brilley, who was already out on bail for armed robbery offences, could sue somebody whose job it was to protect premises from robbers while he robbing those premises. This matter should not have been allowed to even proceed, as now it is tying up the court system at great expense, in order to give this robber a chance to legally extort money. Brilley's assertion that the security guard was liable because he used excessive force is ludicrous in the extreme. A person who is being robbed, or a security guard charged with protecting premises, should be able to legally use any force he sees fit at the time, including killing the robbers stone dead. There should not even be an argument about this, let alone robbers being able to use this as a ploy to run compensation cases.
What is even worse is that completely idiotic decision of the District Court, which awarded Brilley more than $185,000 in damages before this was overturned on appeal. With verdicts such as this handed down by the courts, one can truly believe that the law is an ass of the most monumental proportions. What strikes me as being very funny is that judges can convict people for contempt of court if they criticise their actions and decisions. However, when I see cases such as this, where a robber, who is already out on bail for armed robbery at the time, is actually awarded a large 6-figure sum for being injured during another robbery, then I have nothing but the utmost contempt for any judge who brings down such a completely preposterous and unfair verdict.
The NSW Government paid $1 million to a businessman who fell down three steps at the Darling Harbour Convention Centre. Ian Perrett, who runs wine industry recruiting firm Wine and Vine, was at the Good Food and Wine Festival in July 2005 when he tumbled down the small flight in the foyer of the government-owned complex.
Then aged 69, Perrett broke two ribs, a femur and his hip. He had to have an existing hip prosthesis replaced. He also claimed ongoing stiffness in his hip, depression and the need to use a walking stick.
He sued the Sydney Harbour Foreshore Authority for damages, claiming the state body was negligent because the stairs were covered in the same tiles as the rest of the floor and hard to see. The former Boral manager and rural affairs adviser to the federal government, now 73, also claimed he was distracted from noticing the stairs because he was unable to find the carpark and was busy reading a small sign placed away from the stairs.
Perrett's payout includes $157,000 in non-economic losses with Judge Lucy McCallum noting that his ability to participate in the activities he then enjoyed, such as golf, swimming and gardening, had been substantially impaired. He also received $418,600 for past and future economic loss as well as $160,000 in other expenses associated with the accident. On top of that, his company, which still operates in Sydney's north shore, claimed another $223,000 in workers compensation.
So this man won a huge compensation payout, simply because he was distracted from noticing the stairs because he was busy reading a small sign. What about his responsibility to watch where he was going? Surely the most important thing when moving, especially for a person who has undergone a hip replacement, would be to look where he is putting his feet. And how many people have previously sued the NSW Government for falling down those stairs? The answer is - none.
This is yet another preposterous case where a person has succeeded in extracting a huge amount of money in compensation for his own negligence. Sure, Perrett sustained injuries, but he was hurt simply because he wasn't watching where he was going and that was his responsibility. The NSW Government probably won't appeal, because the insurer will pick up the tab. Of course, when the Government's public liability insurance premium skyrockets because of this payout, the taxpayer of NSW will pick up the tab, this being yet another tribute to the complete incompetence of the NSW Labor Government.
In 2009, Joseph Annesley, who claimed that suffered shock and loss of libido after his elderly mother was left unsupervised at a Sydney nursing home and fell down a flight of stairs has won more than $30,000 in damages.
Annesley told the District Court he could not stop visualising his mother's fall and had developed depression, nervous shock and had lost his libido after her death in June 2007. He sued the nursing home's parent company Principal Healthcare Finance for psychological damage he sustained as a result of it breaching its duty of care.
"When I saw Mum the day after the fall, the nurse lifted back the sheets and she was all black and blue," he said. He stated that he had lost his libido and was unable to show affection to his wife.
Annesley's wife Gaye told the court her husband was an active, "very affectionate, caring man" before his mother died. But since receiving a call from the nursing home about his mother's fall, he had become depressed and lethargic. Judge Colin Charteris awarded Annesley just under $32,500 for pain and suffering.
This matter would be laughable if it wasn't for the fact that somebody got away with squeezing money out of a company on such a preposterous concept. Anybody can claim that they lost their libido after any incident and it's virtually impossible to prove otherwise. Every day, people lose their loved ones, or are involved in incidents that may have an effect on them, but this is what life is all about.
Annesley wasn't touched physically - he merely saw that his mother was bruised after a fall and all of a sudden he claimed that he couldn't have sex with his wife and that he lost interest in a number of pursuits. Big deal. Could he be that big a wimp? Obviously so.
Annesley's mother didn't die, she was merely bruised, but who knows what would happen to Annesley if he had to face something really serious. Would he search around for somebody to sue if somebody in his family died an natural death? It is simply mindblowing that people can get away with making such ludicrous claims and even worse, that some District Court judge would even contemplate awarding compensation for them. This nonsensical claim should have been dismissed about one minute after it was read in court.
In June 2011, Michelle Egglestone, who impaled herself on a picket fence when she fell while urinating from an unprotected veranda, sued her former fiancé for substantial damages. In a Victoria Supreme Court writ, Egglestone of South Ballarat claimed that the veranda at the house in Smythes Creek was constructed without any or with inadequate balustrading and this caused her to fall a small distance to the star picket fence below.
Egglestone sustained penetrative injuries to the rectum, vagina and bladder necessitating surgical treatment involving laparotomy, repair of the bladder, repair of the vault of the vagina and colostomy, according to her statement of claim. The plaintiff stated that she sustained injury at the premises whilst she was urinating from the veranda, which was inadequately lit.
She sued Leslie Furness, saying that he failed to ensure the veranda complied with the building codes, failed to ensure the star pickets underneath had protective capping to minimise the risk of anyone coming into contact with them. She said that Furness was the owner and occupier of the house and owed her a duty of care. Her statement of claim said that her injuries while urinating were a danger which could have been avoided with reasonable care on behalf of the defendant.
This is yet another case where a drunk person commits a really stupid act and injures themselves and wants to blame somebody or something else and profit from it. Firstly, Egglestone was drunk, which was nobody's fault but her own. Secondly Egglestone made the stupid decision to urinate from a balcony instead of going to the toilet, as would any normal person. Thirdly, Egglestone was at the home of her boyfriend, so she should have known that the veranda was not the place to take a leak.
Every single thing that Egglestone did in regard to her injuries could be blamed on her. If she had been drunk and urinated from the edge of a cliff and fallen into the ocean, she probably would have blamed the state for not safeguarding her from her own stupid actions. The truth is that Egglestone caused injury to herself by her drunken negligence and even though the veranda in question may not have had adequate balustrading and lighting, she should not have been using the veranda as a toilet when the house would have had a toilet available.
But what if the veranda had adequate balustrading and the star pickets were capped, but in her drunken stupor, Egglestone still fell over the railing and broke her neck, leaving her a quadriplegic? Would this still be Leslie Furness's fault? Well according to many similar cases of the negligence and stupidity of people who have critically injured themselves, Egglestone would probably have sued Furness in such circumstances too. The main contribution to this accident wasn't the veranda or the star pickets, but Egglestone's intoxication and this was her fault entirely.
On examination of Egglestone's claims, this lawsuit should not have even allowed to be filed. It will tie up valuable court time and resources and it will cause unnecessary expense and trauma to Leslie Furness, who has to defend the claim. This is another example of why a review panel is needed to examine such matters before they are allowed to be put before a court. The result of Egglestone's lawsuit will be published here when it is made available.
In August 2011, in a claim filed in the Brisbane District Court, Qantas Airways was being sued for almost $270,000 by a former customer service agent who worked for seven hours straight without a meal break and then fainted. Insufficient staffing was blamed by Sarah Maroney, 25, for the injuries she suffered when she fainted at work on 12 December 2008.
According to the court claim, Maroney had begun working at 3:30am in the check-in area of Brisbane Domestic Airport. After a busy morning in which she and other employees were verbally abused by passengers angry over delays, Maroney took a break at 10:30am. Maroney's solicitor said that she felt dizzy, sick and felt she couldn't breathe properly, before she lost consciousness and fell to the floor. Her claimed injuries included a soft tissue injury to her left shoulder, resultant subacromial bursitis and ongoing pain.
In addition to damages for pain and suffering of $60,000, Maroney claimed $184,982 for economic loss due to the diminution in her capacity to earn an income and $15,525 for lost superannuation benefits. A Qantas spokesman said the airline would oppose the claim, saying it was Maroney's choice not to take a break earlier in the day.
On the face of it, this particular case is another one without merit. Nobody held a gun at Maroney's head and forced her to work for 7 hours non-stop. In fact, Qantas stated that she could have taken a break but personally chose not to do so. The bottom line is that nobody in Australia is forced to work unreasonable hours and everybody has the right to refuse to do so, including Maroney.
However, Maroney's personal choice not to take a break may have led to her suffering a fainting spell, but in matters such as this, there is always the stench of a deliberately contrived incident in order to generate a pretext for compensation or a lawsuit. The litigious compensation culture has taken hold in Australia with a vengeance and it will be most interesting to see whether the judgement in this matter makes any sense or not.
In November 2011, a retired sailor who blames the Royal Australian Navy for his drinking problem is one of four ex-servicemen suing the government because they drink, eat and smoke too much or suffer from erectile dysfunction. The four men have fronted the Administrative Appeals Tribunal of Australia in separate attempts to force the nation's taxpayers to compensate them for their vices or erectile dysfunction.
Geoff Leitch, who lives in Tasmania, is one of three retired naval officers, all veterans of either the Korean or Vietnam wars, who blame their alcohol, tobacco and food demons on the stress of serving their country and a navy culture of excess. The tribunal heard that Leitch went from having a couple of cans of beer a fortnight when he enlisted in the navy in 1969 to at least six a night soon after experiencing the trauma of the Vietnam conflict. But the tribunal upheld an earlier decision by the Department of Veterans Affairs not to award him a pension usually reserved for serviceman suffering from war-related injuries or illness.
Leitch, 59, said he already received an ex-serviceman pension and disability pension for osteoarthritis in one of his knees, a fractured leg injury, and a hearing deficiency. But Leitch said he felt entitled to extra, as a result of his drinking problem, which he claims he developed in the navy. "I went from the junior ranks to the senior ranks in 1977 and when you get into the senior ranks the mess fridge was there and you could have a beer at 4:00pm," he said. "You could drink as much as you like and nobody complained as long as you showed up for your duties the next morning."
This is another classic case of blaming somebody else for your own stupidity and weakness. Plenty of servicemen managed to survive wars, severe trauma and other tribulations without becoming alcoholics, heavy smokers and remained sexually active too. These four ex-sailors don't seem to understand that they have a personal responsibility for their own actions.
The RAN did not force them to go to the bar fridge and drink copious amounts of beer because it was there. The RAN did not force them to smoke cigarettes. As for their erectile dysfunction, this is something that happens to a large percentage of males, but to blame their lack of sexual ability on the navy is just ludicrous. These men ought to be prosecuted for wasting a court's time at great expense on their claim, which has no merit whatsoever.
In May 2012, Dylan Streller, who became a quadriplegic after falling from a rope swing into the Murray River lost his civil case against the local council. He had claimed that Albury City Council breached its duty of care by failing to remove the rope swing from which he fell during Australia Day celebrations in January 2008.
Streller, then aged 16, used the rope to backflip into the Murray River at Oddies Creek Park before striking his head on the bottom, causing him to become paralysed. He alleged that the council failed to remove or supervise the rope swing, failed to ensure the water was sufficiently deep and failed to warn him and others it was dangerous to dive into the water or use the swing.
However, in the NSW Supreme Court, Justice Megan Latham found that Streller was aware of a sign on the river bank which said: "Warning: this river has strong current and very cold water." She found that the council regularly inspected the river banks with the express purpose of removing rope swings and had asked a contractor to get rid of the rope swing in question as soon as possible the day before the accident.
"I do not accept that the council encouraged recreational use of the subject tree or any tree emanating from the river bank," Justice Latham said. "To the contrary, the council attempted, by the erection of signage, to discourage persons from swimming in the river and removed rope swings, or caused them to be removed as soon as practicable." Justice Latham said she was of the view that the risk was obvious.
Here was yet another person trying to extort money from somebody else for injuries that he had caused to himself by his own stupidity and negligence. Just because a rope swing is there does not mean that using it is safe. Streller didn't check to see if it was safe to use the rope swing and he did not check the depth of the water in the river before performing the backflip that destroyed his life forever.
There are lots of dangerous situations that need to be assessed by people every day. Roads are all over the place, but everybody has an obligation to look for approaching cars and assess the risk of crossing those roads before they put one foot on them. Any fool who steps onto a road without looking and gets mowed down by a car cannot blame anybody but himself. So any fool, such as Streller, who jumps into a river without ascertaining its depth has failed to assess the risk and any injury he sustains from his stupidity and negligence is his fault alone.
This is yet another case where this preposterous notion of duty of care was attempted to be used as a weapon to extort money. People have a duty of care to themselves to not do dangerous and risky things. Just because there is a fence to climb on, or a rope to swing on, does not mean that people should do that. The whole concept of duty of care to others should be abolished completely.
In 2007, Irish tourist Evan Joseph Kelly, who belly-flopped into a Fraser Island waterhole and was rendered a partial quadriplegic was granted substantial damages from the Queensland state government because it failed to adequately warn of the dangers. In a decision in Rockhampton, Supreme Court Justice Duncan McMeekin ruled that he was to receive 85% of any damages awarded against the Queensland Government.
Kelly, an apprentice electrician from Kiljames in Ireland, suffered a C6 spinal cord fracture when he ran down a sand dune, tripped and fell into the water at Lake Wabby on 27 September 2007. The court was told that signage and warnings at Lake Wabby had not been upgraded despite some 18 people suffering serious injuries at the site between 1990 and 2007.
One has to feel very sorry for anybody who is rendered a cripple by any means, but that should not mean that the person who caused his injuries should be able to demand compensation from somebody else for his own actions that resulted in those injuries. But here is yet another one of those cases where compensation is awarded to a person who failed to use common-sense
Who is to judge what is a hazard anyway? People can walk in a public park, trip and break their necks. Should there be a sign in every park stating that walking on the grass is a hazard? This is ridiculous. In this particular case, Kelly was running down a sand dune. There is a risk of falling involved in that and it was Kelly's responsibility to ensure his safety, so he should not have run in the first place.
Must there be a sign at every single place in Australia to warn people of danger? After all every place can constitute a hazard, so would we be happy to have signs plastered on every road, every beach, every park, every swimming hole, every sand due, every conceivable place? Of course not. But this is what courts such as the Rockhampton Supreme Court expect, going on this judgement and compensation award.
As sympathetic as one can feel for the plight of Evan Kelly, this compensation should have been contested by the Queensland government, because it sets a very unhealthy trend, where people can sue for any injury suffered in literally any place, just because there was not a warning sign there.
The problem with civil litigation in Australia is the principle that everybody is entitled to their day in court. This sounds very noble in principle, but does not prevent plaintiffs launching completely worthless lawsuits, nor does it prevent the defendants in these worthless lawsuits from being inflicted with massive legal costs that in many cases bankrupts them, ruins their lives and turns them into victims, even if they successfully defend themselves in court and win.
To eradicate this very unfair situation, there is a desperate need for a review tribunal, a mandatory first stop for all civil litigation cases, to assess at minimal cost whether there is any merit to the claims made and whether there is any chance of such litigation succeeding. Litigants would appear without legal representation before such a tribunal and present their claims to determine if they were indeed valid and worthwhile. Defendants would also have the opportunity to refute such claims and show why the litigation should not be allowed to proceed. This weeding-out procedure would save all parties an absolute fortune in legal costs, as well as saving the taxpayer from the huge expense of lengthy court cases that have no merit or chance of success.
If such a review tribunal was operating at the time of the Kane Rundle, David Prast, Jason Proust, Timothy Walker and Behrouz Foroughi matters, it would have quite obviously assessed these lawsuits as worthless and stopped them in their tracks, saving everybody literally millions of dollars and freeing up the courts for worthwhile matters. It is abominable that lawyers still continue to urge people with worthless claims to attempt to gain money from others by using the courts as a weapon of extortion. It is also a sad indictment on our legal system that such cases are allowed to proceed on the basis that everybody is entitled to their day in court, not taking into account the financial and mental effect on the real victims of such litigation, the defendants who, although cleared, are faced with ruin for no good reason whatsoever.
The most important move would be for laws to be passed that enshrine and enforce the principle of personal responsibility. In other words, if people injured or even killed themselves by their own negligence or stupidity, then nobody else could be held responsible for these events. For instance, if a person dived into a pool that was too shallow for such an activity and broke his neck, then it would be that person's fault totally for not checking the depth before plunging in. The fact that there may or may not have been a warning sign should be immaterial. The old saying "Look before you leap" should be the yardstick by which all people should operate.
If a person climbed a fence, fell from it and broke his neck, then that would be his fault entirely. Even complete imbeciles know that fences are there to prevent people getting through to the other side, therefore people who climb fences and injure themselves only have themselves to blame. The same applies to buying commonplace products such as a cup of coffee in a paper cup, which any person knows is going to be hot before they buy it. Unless the cup itself is defective, if they then scald themselves with the coffee, then it is totally their fault.
Being drunk or drugged should never be a mitigating factor or any sort of excuse for anybody trying to win compensation for being injured because of their stupefied state. Nobody forces a person to drink or take drugs - these are completely voluntary and deliberate acts, therefore injuries sustained because of these factors should never be blamed on the people who supply the alcohol or drugs. People should be completely responsible for their own actions and any outcomes that eventuate from those actions.
Having personal responsibility laws in place will kill off the majority of damages litigation and sheet home the onus to everybody to be personally responsible for their actions. Until this occurs, nobody is safe.
Many casinos and large bookmakers have established self-exclusion procedures, where people with gambling problems can ask to be barred from gambling with them. Some nations have passed laws requiring gambling providers to operate such schemes. However, this very unfairly puts the onus on businesses to be responsible for the idiocies of others and prevent them from financially damaging themselves, even when those idiots deliberately try to bypass their own self-exclusion orders, as can be seen from the many attempts by gamblers to sue casinos and bookmakers.
Self-exclusion is exactly what its title means - a person takes the voluntary step of asking a gambling business to bar him from gambling. That's fair enough, but this should only apply to the closing of gambling accounts and nothing more. Casinos are open to the general public and bookmakers are free to accept bets from any adult. They are not moral policemen and should never be forced into that role. If people under self-exclusion orders then violate them and sneak into casinos and gamble, or fool bookmakers into accepting their bets, then that has to be nobody else's responsibility but their own.
Of course there has never been a case of any gambler under a self-exclusion order who violated it, won money and then refunded it. The problem with this whole self-exclusion system is that it is completely biased against gambling providers and forces them to take responsibility for the voluntary actions of others. The way self-exclusion orders should work is via a legislative framework that makes it a criminal offence for people under self-exclusion orders to violate them in any way and be jailed if they do. That puts the onus squarely back on the people who took out the orders on themselves to be responsible for keeping out of the places covered by that order.
Since the collapse of insurer HIH, the problem of ever-increasing civil lawsuits in Australia is out of control. Many activities considered commonplace and normal have been cancelled due to the spiralling cost of public liability insurance, which is mainly fuelled by greedy and unscrupulous claimants, ambulance-chasing lawyers and stupid judges and juries awarding ridiculous amounts of money for no good reason. It seems that until legislation is passed that firmly makes people personally responsible for their own injuries and losses rather than trying to find scapegoats, then many important activities will be made unavailable. The whole concept of "Duty of Care" has to be totally redefined.
People should not owe anybody else a "Duty of Care" and should refuse to be burdened with a responsibility that they neither seek nor accept. If somebody wants to drink themselves to death, it is their problem. If somebody wants to commit idiocies that result in losses, injuries or even their deaths, it is their problem. If a person wants to commit suicide, it is not anybody else's duty to talk them out of it or to risk their lives by taking risky action to stop them.
If somebody sees a person lying bleeding to death on the road, their normal instinct would be to render assistance, but in light of recent litigation, they should remember that their self-preservation takes precedence and be aware that if they do get involved, then they could wind up being sued for every cent they have. Until the law is changed to protect people from any adverse results from rendering assistance, then they should ignore such situations completely. If people did not directly cause the problem, they should refuse to take responsibility for it or be liable for any compensation that is demanded as a result.
People who are interested in maintaining their rights, possessions and their freedom should also immediately publicly renounce any obligations that they have not willingly consented to adopt, such as this "Duty of Care" which is so dangerous and oppressive. Not only that, they should fight tooth and nail in courts of law to prevent such onerous obligations being placed upon them.