Personal injury disputes

A personal injury dispute is a civil dispute where one party claims to have suffered damage or injury to their body, mind or mental health. They will initiate legal action to seek restitution from the party they believe is responsible for this injury. Most personal injury cases are based on the tort of negligence – in other words, the plaintiff claims the injury was caused by an action or inaction of the other party. As in other civil law disputes, the burden of proof in a personal injury dispute rests with the plaintiff. The plaintiff must demonstrate that the other party or parties acted negligently. They must also prove that this negligence caused them to suffer personal injury. Some of the more common examples of personal injury cases include:

Workplace injuries. Injuries suffered in the workplace are also quite common and may lead to personal injury action. Workplace injuries can be caused by faulty equipment or safety gear, poor ventilation, inadequate training or ineffective safety procedures. In Edge v. Workcover SA (2005) a man lost most of his tongue to cancer after working for years in a bar filled with cigarette smoke; he was awarded an undisclosed sum. In 2010 Brock, a policeman, sued the Queensland Police Service after he was assaulted by escaping prisoners in 2006. Brock suffered a fractured elbow, back injuries, dental damage and post-traumatic stress. Brock claimed that the service’s facilities and operating procedures were ineffective, allowing the prisoners to escape and endangering the care of police employees. Brock’s case is still pending.

Road accidents. These are by far the most common type of personal injury claim. Drivers who suffer injury, impairment, disfigurement and loss of amenities because of a road accident may decide to seek damages, either from other parties involved in the accident or from statutory authorities, such as Victoria’s Transport Accident Commission (TAC). In 2010 the West Australian District Court awarded James, a cyclist, $7.4 million after he was knocked off his bike. Because of his injuries, James required around-the-clock care, oxygen and modifications to his home.

Medical malpractice. Patients who suffer injury because of the negligence of medical professionals may initiate a malpractice claim. In 2005 a Perth man won $500,000 after two doctors wrongly diagnosed a lump behind his knee; the lump was subsequently revealed to be cancerous and led to the amputation of the man’s leg. In 2004 an unnamed couple were awarded $105,000 compensation and costs against their obstetrician after the woman had a faulty contraceptive clip fitted to her Fallopian tube and fell pregnant.

Sexual harassment and misconduct. Individuals may take legal action against those with a duty of care who engage in sexually inappropriate behaviour. In 2005 Weston, a female lawyer in her 20s, successfully sued investment banking firm Merrill Lynch for more than $1 million for sexual harassment. Weston claimed that a senior executive had commented on her sex life and her breasts and that when she complained, Weston was isolated in the firm and given the ‘silent treatment’. In 2006 Melbourne teacher and tennis coach Gavin Hopper, then serving a prison term for having sex with an underage student, agreed to pay the victim an unspecified amount of compensation. It later emerged that Hopper and his school had previously paid $100,000 to another student some years before.

Unsafe products. Personal injury caused by defective or unsafe products may also prompt legal action. This type of claim is made more extensively in the United States than in Australia. One contentious area of civil law in recent times has been personal injury claims against tobacco companies by individuals who have contracted lung cancer or emphysema. These claims have not had a good record of success, largely because of the delaying tactics employed by the larger tobacco companies. In 2002 a Victorian woman, Rolah McCabe, was awarded $700,000 after contracting terminal lung cancer from British American Tobacco (BAT) products. McCabe’s victory was overturned on appeal, largely because BAT destroyed dozens of documents related to the case. One of the most famous product liability cases was Liebeck v. McDonalds (1994) where an American woman received third-degree burns to her legs from a takeaway cup of coffee; she then sued the McDonald’s franchise for selling drinks at unsafe temperatures. A jury awarded Liebeck $US2.9 million, however this was reduced on appeal for an unspecified amount less than $600,000.