Achievements
Public Liability
Defended a personal injury claim by a school pupil against a private school for severe injuries (quadriplegia) received in a game of rugby union. This involved perusing and assessing preliminary material and advising on liability with recommendations for further conduct and evidence; organising the taking of further statements from witnesses and relevant school personnel in relation to practice and procedures of training of pupils for rugby union; organising for proofs of evidence to be taken from all relevant witnesses in conference with counsel; drafting detailed and comprehensive requests for further and better particulars of the plaintiff’s claim such that the plaintiff’s legal representatives realised that the plaintiff’s claim was hopeless and the claim was withdrawn, saving the potential cost of the claim at around $8 million plus.
Professional Indemnity
Acting as coverage and monitoring solicitors on behalf of underwriters in a claim by a state government against a principal contractor, for alleged design and construction defects arising from extensive refurbishment of a remote hospital. The proceedings involved a principal contractor and design and certification consultants, including contractual indemnity and contribution issues.
Acting on behalf of a Lloyds' sydnicate in relation to over 40 investor claims against insured stockbroking firm. Advising underwriters in relation to late notification issue, application of Section 40(3) Insurance Contracts Act 1984 and general reservation of rights. Third party proceedings instituted against underwriters.
Product Liability
Retailer of rural machinery
Acted for a retailer of rural machinery, who sold a “slasher”. The purchaser claimed that it was not fit for designated purpose, causing loss of profit by missing harvesting season. Retailer had carried out some modification of the slasher, contributing to malfunction, but there were underlying manufacturing defects. We obtained expert engineering opinion and issued a cross-claim against the manufacturer. At mediation, the claim resolved with contribution on behalf of the retailer being less than 10% of the overall payment.
Major fire safety corporation
Acted for a major fire safety corporation in respect of the destruction by fire of a $5 million excavator defending proceedings in Federal Court brought by a conglomerate of Australian and multi-national insurers and coalmine operators.The case had features of both professional indemnity and product liability and involved multiple parties and cross-claims, allegations of negligence, breach of contract and breaches of the Trade Practices Act, extensive discovered documents and detailed expert evidence. The total claim, including material damage, business interruption and interest components, approximated $10 million and the matter was settled at mediation on very advantageous terms for a fraction of that figure prior to trial.
Property Damage
Transport company
Acted for a transport company pursuant to the subrogation rights of an insurer in order to recover the cost of damages sustained in a two vehicle accident in rural New South Wales. Both vehicles were B-Double combinations and sustained significant damage. The evidence supported both theories as to accident sequence and we were instructed to litigate and subsequently defend a significant cross-claim. Our client’s insured was likely to receive a finding of contributory negligence if any part of the third party’s evidence was accepted especially due to the presence of a ‘witness’ supporting the third party however, through meticulous investigation and the comprehensive preparation of our client’s insured evidence we were able to obtain an award in favour of our client at Hearing, with no reduction for contributory negligence.
Property owner
Acting for the owner of a property in south west NSW, who owned a tractor which had recently been serviced. It "sparked" causing a fire which spread to neighbouring properties, causing crop loss and damage to fencing and farm buildings. The claim requires investigation by specialist fire forensic experts as to the cause of the fire, fire prevention and retardation issues and from agronomists and loss adjusters in relation to the losses claimed. Claim ongoing.
Compulsory Third Party
Mackenzie v Nominal Defendant
Defended this personal injury claim by an intoxicated motorcycle pillion passenger rendered quadriplegic in a motor vehicle accident and obtained the first ever verdict in NSW of 100% contributory negligence. Although this verdict was reduced to 80% contributory negligence on appeal, the saving to the Nominal Defendant was in the order of $4 million.
Recovery Claims
Transport company and Insurer
Acted for a transport company and a leading insurer on subrogation in a matter where there was a major motor vehicle collision and both insured drivers and the third party tragically passed away as a result of the collision. There were no independent witnesses to the collision however, forensic evidence indicated that the third party had fallen asleep at the wheel veered into the path of our insured. Our client was left with a loss of $300,000 and we sought recovery from the property damage insurer of the deceased third party and due to the nature of the matter, we had to ensure that we were sensitive in this process. Initially liability was declined by the third party insurer on the basis of lack of witnesses however, due to our initial investigations, we were able to establish fault on the part of their driver and negotiate full settlement without the instigation of proceedings.
Business Interruption
Major Engineering & Construction Company
Claim by a major energy company under an EPIC Contract for more than $90 million in respect of engineering and project management works undertaken by the client on the BassGas Project in the Tasman Sea. The claim comprises a range of complex technical and insurance issues going to the design and execution of project, delays in production and business interruption losses.
Workers Compensation
Major Australian ski resort operator
DibbsBarker acted on behalf of a major Australian ski resort operator following the mechanical failure of a Double Chair Lift in 1997. We acted for the client on the defence of prosecution proceedings brought by WorkCover, including assessing all of the OH&S implications which resulted in the development of key strategies. We also managed the defence of common law and workers’ compensation proceedings brought by no less than three (3) members of staff who were on the chairlift when it malfunctioned and derailed. This matter clearly demonstrated our delivery of full litigation and dispute resolution services across diverse practice areas.
Medical Malpractice/Disciplinary
Gynaecology
Acted for a gynaecologist responding to allegations of having poor surgical skills and performing unnecesary operative procedures. The pracitioner was suspended from practice following a Performance Assessment and a review of that Assessment by the NSW Medical Board. We appealed against the suspension to the Medical Tribunal. Shortly before the Tribunal hearing, the Board reconsidered its decision to suspend, revoked the suspension and imposed conditions on practice for the protection of the public. We negotiated more favourable conditions and then successfully obtained an order that the Board pay the practitioner's costs of the appeal to the Tribunal;
Obstetrics
Acted for an obstetrician, responding to a claim for failing to diagnose growth retardation in the womb, said to have led to the development of cerebral palsy, intellectual impairment and visual problems. The defence required extensive consideration of obstetric and ultrasound ante-natal practice, and complex issues of causation, life expectancy and damages for a severely disabled child as well as nervous shock claims for parents the the child's siblings.The claim settled at mediation for about one-third of full value and subsequently the Supreme Court approved the settlement in relation to the interests of the child, who was under a legal disability.
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