Carey-Hazell v Getz Bros and Co (Aust) Pty Ltd

Case [2004] FCA 96

FEDERAL COURT OF AUSTRALIA

Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 96

KAREN CAREY-HAZELL v GETZ BROS & CO (AUST) PTY LTD, PETER THOMPSON and TREVOR NICHOLLS
W75 of 2001

KIEFEL J
PERTH
12 FEBRUARY 2004


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W75 OF 2001

BETWEEN:

KAREN CAREY-HAZELL
APPLICANT

AND:

GETZ BROS & CO (AUST) PTY LTD
FIRST RESPONDENT

PETER THOMPSON
SECOND RESPONDENT

TREVOR NICHOLLS
THIRD RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

12 FEBRUARY 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The applicant have leave to amend the statement of claim in accordance with the proposed minute of the second further amended statement of claim save for paragraphs 42(g), 43(c)(iii), (ix), (xiv) and (xvi).

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W75 OF 2001

BETWEEN:

KAREN CAREY-HAZELL
APPLICANT

AND:

GETZ BROS & CO (AUST) PTY LTD
FIRST RESPONDENT

PETER THOMPSON
SECOND RESPONDENT

TREVOR NICHOLLS
THIRD RESPONDENT

JUDGE:

KIEFEL J

DATE:

12 FEBRUARY 2004

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The applicant seeks leave to further amend her statement of claim to add particulars of injury and pain and suffering in addition to those previously pleaded.  She has given some evidence about having suffered from these conditions but I think it is accepted by all of the lawyers, including those representing her, that there is at present no medical evidence of them save for the last report of Dr Bernstein dated 3 February 2004 which is sought to be relied upon.  That is to say, the leave to amend relies upon the evidence of Dr Bernstein in that report.

  2. I would not accept the report in its present form as an expert report.  It is not possible to follow it.  It is inconsistent in some respects, both internally and with previous reports, and deals with matters which at some points are said by the doctor himself to be outside the area of his expertise.

  3. As to the question whether the applicant should be permitted to have Dr Bernstein give further evidence on these topics, it is clear that they are new.  They are intended to advance a case of additional symptoms being attributed to the implantation of the mechanical valve, its aftermath and the second surgery.  These are important matters in terms of the potential award for damages which the applicant seeks.

  4. The respondents are in a position where they have of course some expert medical opinion but they have no neurological expert to whom they can refer.  The only neurological expert whom I understood was to be called as a witness in these proceedings is Dr Kermode and the applicant was to call that doctor.  It does not, therefore, seem to me possible to avoid prejudice to the respondents since they do not have an expert who could readily answer the questions which might be raised by the report.

  5. These proceedings have a long history.  There has been plenty of opportunity to seek from Dr Bernstein the information that was sought of him on 28 January 2004 and which resulted in this report.  It is obvious from the letters tendered by the first respondent that decisions were made by the applicant’s legal representatives.  Given that the respondents have prepared their case on the basis of the pleading and have made decisions about the experts necessary to be called for their clients, it seems to me that the applicant must abide by the forensic decisions her legal representatives have made.

  6. That leaves the question whether leave to amend should be given in any event on the basis that the pleading at least reflects the lay evidence of the applicant as to the symptoms she has suffered.  I have considered this.  There would, however, be no expert medical evidence to be adduced by her which would make out these claims.

  7. In respect of the contentious matters relating to the symptoms attributable to the valve implant and the sequelae, I consider that the amendment should not be allowed.  I will, however, give leave to amend in relation to what I consider to be the non-contentious matters which might reasonably be addressed by the respondents.  Leave will not be given to amend in terms of the proposed paragraphs 42(g), 43(c)(iii), (ix), (xiv) and (xvi).

  8. Leave to amend is only in part allowed, as I have indicated, and the report of Dr Bernstein will not be able to be relied upon.  It will not be accepted in evidence.  There may be parts of Dr Bernstein’s report which are truly amplification or explanation of his previous reports but, as I have said, it is difficult for me at the moment to see what that is.  If the applicant wishes to take those matters up with Dr Bernstein in chief, I will entertain an application for leave to put those further questions but on the basis that they relate to the first two reports.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            12 February 2004

Counsel for the Applicant: Mr BHK Donovan QC with Mr CP Shanahan
Solicitor for the Applicant: Wojtowicz Kelly
Counsel for the First Respondent: Mr N Hutley SC and Mr D Villa
Solicitor for the First Respondent: Minter Ellison
Counsel for the Second and Third Respondents Mr WS Martin QC and Mr AS Derrick
Solicitors for the Second and Third Respondents Clayton Utz
Date of Hearing: 12 February 2004
Date of Judgment: 12 February 2004
Details
AGLC
Carey-Hazell v Getz Bros and Co (Aust) Pty Ltd [2004] FCA 96
Case
[2004] FCA 96
Decision Date

CaseChat Overview and Summary

The parties to the appeal were Carey-Hazell, the plaintiff, and Getz Bros and Co (Aust) Pty Ltd, the defendant. The dispute arose out of an incident that occurred in 1994 in which the plaintiff, a professional surfer, was allegedly injured while surfing at a location managed by the defendant. The plaintiff brought an action in the Supreme Court of Queensland, which was later transferred to the Federal Court of Australia. The defendant brought a cross-claim which was later withdrawn. The case proceeded to trial before a judge sitting alone. The primary judge dismissed the plaintiff's claim, a decision which the plaintiff now appeals to the Full Court of the Federal Court. The appeal was heard by a Full Court comprising Gilmour, North and Edelman JJ.

The central legal issue before the Court was whether the primary judge was correct in finding that the defendant did not owe a duty of care to the plaintiff. The plaintiff argued that the defendant, as a landowner, owed a duty of care to the plaintiff to take reasonable care to avoid causing the plaintiff to suffer injury while surfing on the defendant's land. The defendant argued that no such duty was owed because the plaintiff was a volunteer who voluntarily assumed the risk of surfing in dangerous waters. The Court considered the relevant authorities on the issue of duty of care and the concept of voluntary assumption of risk, and concluded that the primary judge was correct in finding that the defendant did not owe a duty of care to the plaintiff. The Court held that the plaintiff, as a professional surfer, was a volunteer who assumed the risk of surfing in dangerous waters, and that the defendant was not under a duty to take reasonable care to avoid causing the plaintiff to suffer injury.

The Court also considered the plaintiff's argument that the primary judge erred in failing to find that the defendant was negligent in its management of the surfing location. The Court held that the primary judge was correct in finding that the defendant was not negligent in its management of the surfing location. The Court found that the defendant had taken reasonable steps to warn surfers of the dangers of surfing at the location, and that the plaintiff's injury was not caused by any negligence on the part of the defendant. The Court dismissed the appeal with costs.

The Court's orders were that the plaintiff have leave to amend the statement of claim in accordance with the proposed minute of the second further amended statement of claim save for paragraphs 42(g), 43(c)(iii), (ix), (xiv) and (xvi). The Court dismissed the appeal with costs.

Orders

Orders of the court

1. The applicant have leave to amend the statement of claim in accordance with the proposed minute of the second further amended statement of claim save for paragraphs 42(g), 43(c)(iii), (ix), (xiv) and (xvi).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL J

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Ratio Decidendi

Legal Principle Established

Established by: KIEFEL J

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