“Here are some ‘Double Win’ cases I have taken to trial and won before a District Court Judge.  As the insurer was unhappy with losing in the District Court, they have appealed to the Supreme Court, only to lose the appeal.  This has resulted in what I call a ‘Double Win’ for the client”. 

 Tony Separovic
 June 2010

1. Car Crash – Paraplegic - Driver not Wearing Seatbelt – Fault in Issue – No Offer Made before Trial –Awarded Approx $1M - Case reference – Richards v. Mills (2003) WASCA 97

This case was reported on the front page of the West Australian newspaper on 4 June 2003.  The headline read:

                                       ‘No Seatbelt Crash Driver Gets $1M’.

Immediately prior to the motor vehicle accident, our client’s fiancé had left for work travelling in his car south along Kwinana Freeway.  After saying ‘goodbye’ our client noticed her fiancé had left his work keys behind so she decided to drive off in her own car to try to catch up to him on the freeway and give him his work keys. 

Driving south on Kwinana Freeway our client approached behind the Defendant’s vehicle which was travelling in the right lane.  She flashed her lights but the Defendant did not move over.  She then drove from the right lane to the left lane in order to overtake the Defendant.  When her vehicle was in front of the Defendant’s vehicle, she indicated to turn from the left to the right lane in order to overtake the Defendant.  Unfortunately although it should have been obvious to the Defendant of our client’s intention to change lanes, he failed to back-off and give our client sufficient room.  As a result, when our client attempted to change lanes, the 2 vehicles clipped causing our client to lose control of her vehicle which in turn crashed rolling over on a number of occasions and coming to rest between the south and north bound lanes of the freeway.

Our client was not at the time wearing her seatbelt and was flung from her vehicle resulting in her sustaining catastrophic spinal cord injuries causing paraplegia.

There were a number of witnesses to the accident, some of which criticised our client for driving erratically.  However following investigations conducted by this practice, a ‘key’ independent eye witness was found and who was not previously identified by either the Insurance Commission or the Police.  The eye witness was a naval intelligence officer who gave evidence in favour of our client to the effect that it was obvious to him, and it should have been obvious to the Defendant, of our client’s intention to change lanes and overtake the Defendant’s vehicle.

From the outset of the case it was known that our client was not legally entitled to receive a 100% award of damages.  There was always going to be a discount applied for her own contributory negligence in failing to take more care when changing lanes and failing to wear a seatbelt.

Prior to trial, the Insurance Commission refused to make any offer of settlement alleging our client had driven erratically and that the Defendant driver had committed no error of judgement. 

A District Court Judge found in favour of our client holding that the Defendant driver should have been aware that our client wished to change lanes and overtake him but failed to slow down and provide sufficient room for our client to safely change lanes.

As expected the trial Judge found that our client was contributorily negligent for which he applied a 55% discount to the final award of damages. 

The insurer appealed to the Supreme Court which upheld the District Court Judges’ findings and dismissed the appeal. 

Our client received approximately $1 million in damages (after applying the discount for her own contributory negligence).

2. Work Accident – Crush Injury to Hand – Defective Machinery - Case reference - Scope Machinery Pty Ltd v. Michael Ross and Profile Packaging Pty Ltd (2009) WASCA 100

The Plaintiff worker (“our client”) claimed damages arising from a crush injury to his right hand suffered at work.  The claim was brought against both the employer and the manufacturer of a press machine in which our client’s hand was crushed.  The machine was designed to produce plastic products.

A District Court trial Judge found in favour of our client and awarded him approximately $700,000.00 apportioning 60% liability to the manufacturer and 40% to the employer. 

The manufacturer of the machine appealed to the Supreme Court.  Chief Justice Martin and Justices Buss and Miller all agreed the appeal should be dismissed.   

3. Work Accident - Interpretation of Workers’ Compensation & Rehabilitation Act 1981 - Case reference - Marshall v. Lockyer (2006) WASCA 58

The injured Plaintiff (“our client”) suffered injury whilst driving a tractor pulling a water tanker along a race track at Ascot Racecourse.

The matter proceeded before a District Court Judge who awarded the maximum payable under the legislation of $293,990.00. 

The employer appealed to the Supreme Court.  All 3 Judges of the Court of Appeal agreed that the appeal should be dismissed.

4. Public Liability Claim – Drainage grate giving way under truck while driver making deliveries – Occupiers’ Liability Act - Case reference - Geroheev Pty Ltd v. Wheare (2004) WASCA 2006

Our client was a truck driver who was employed to deliver bread to retail premises.  On the day of the accident he parked his truck in a parking area adjacent to shops.  After completing a delivery as he attempted to climb into the truck cabin, he stepped onto a damaged drainage grate resulting in him sustaining a serious knee injury. 

In the District Court our client was successful in establishing negligence against the owner of the premises.

The insurer appealed to the Supreme Court and the appeal was dismissed.  Our client received damages of $500,728.24.

5. Work Accident – Head Injury - Case reference - Nolan v. Hamersley Iron Pty Ltd (2000) WASCA 304

Our client sustained injury at work whilst operating a ‘Toyota Hirail’ vehicle on a rail track between Tom Price and Dampier.  Our client sustained a head injury resulting in a ‘movement disorder’ and seizures.  Our client was awarded in the District Court $1.1 million in damages.

A Supreme Court appeal proceeded between the respective Defendants and which appeal did not affect our client’s award of damages.