Our client was a 56 year old female from western sydney visiting darling harbour in January, 2015 with a work colleague. She attended there to enjoy a lunch with a friend at darling harbour. They both attended a restaurant for the lunch.
Our client and her friend left the restaurant in order to walk to the dendy theatre at circular quay with the intention of watching a movie. As they were walking along the concourse area of darling harbour, the weather condition were fine and it was quite crowded.
Whilst our client was walking she heard the sound of a ringing bell and looked up to observe the vehicular train travelling in her direction. In the course of attempting to move out of the way of the train, our client fell down some adjacent steps and suffered a serious injury to her left hip.
Our client had increasing pain in the left hip and she presented to blacktown hospital where a fracture of the left hip was diagnosed. She went on to have an internal fixation with a screw at blacktown hospital. Our client underwent physiotherapy and rehabilitation over a period of 5-6 weeks and was reviewed by the orthopaedic surgeon at the fracture clinic.
She was able to return back to all normal duties within 2-3 months and she returned back to her occupation as a pre-school teacher not long thereafter. The medical evidence had indicated that our client did have an increase of developing osteoarthritis in the left hip later in life due to the injury.
The issue of liability was the major dispute between the parties. The insurer denied liability on behalf of their insured driver and an application for exemption was certified for our client to commence court proceedings in the matter.
Our client and her witness provided corroborative evidence in direct contrast to the evidence of the insured driver of the train. Our client’s evidence was that the train driver was at fault in that he should have slowed the train down or brought it to a complete halt so as to avoid our client needing to move out of the way and falling down the stairs and thereby causing the fracture to her left hip. The independent witness evidence verified our client’s version of events.
There was no doubt that the train driver owed our client a duty of care to drive the train in a safe manner in the circumstances and to exercise due and proper care whilst driving the train. It was alleged against the train driver that he also failed to give any or any proper lookout for pedestrians, failed to slow down to avoid our client having to move out of the way and fall down the stairs causing her injury, failed to exercise any or any proper control over his vehicle, failed to exercise due care and skill in the management and control of the train in the presence of the crowded tourist area in darling harbour and failed to see that our client was in a position of peril in the circumstances.
Even though an application for exemption was certified by the relevant authority, the insurer appreciated that there was a risk of potential liability against their insured train driver having regard to the circumstances of the accident and the version of events being verified by our client’s independent witness.
There was certainly some contributory negligence on the part of our client in causing her injury but this did not absolve the responsibility on the insured driver of the train, and the control and management the driver had over the vehicular train.
On that basis the insurer attended for an informal settlement conference and the parties were able to negotiate a settlement of the claim. Our client received a substantial award of damages in respect of her injuries, losses and damage.
The case is a timely reminder as to the duty of care that a driver of a train or a vehicle has in respect of pedestrians whilst they are in control of a vehicle that has the potential to cause significant injury. It is incumbent upon them to keep a proper lookout and exercise due care and skill in the driving and management of the train or the vehicle so as to avoid any injury to pedestrians such as our client.
Conclusion:-
This was a very good outcome for our client who was a pedestrian involved in a train accident at darling harbour one year earlier. The insurer denied liability and obtained an exemption from the relevant authority so our client could commence court proceedings in the matter.
After undertaking a comprehensive investigation of the accident and obtaining statements from our client and the witness, the insurer clearly came to the conclusion that there was a risk of liability on their train driver and that our client could establish negligence against the train driver in causing her serious injuries, losses and damage.
In the circumstances, the insurer agreed to award our client a substantial award of damages in settlement of her claim.
If you are a pedestrian who has suffered serious injuries and disabilities as a result of a motor vehicle accident, you may be entitled to receive a substantial award of compensation as a result of the negligence of the driver who caused the accident. The damages that you would be able to claim would be for non-economic loss, permanent impairment, pain and suffering, past and future treatment expenses, past and future loss of wages, past and future loss of Superannuation and past and future care which will cover the consequences of the accident and how they have affected your ability to lead a normal life.
For a free no obligation consultation, please contact our toll free number 1300 768 780 so that an appointment can be arranged for you to attend to protect your legal rights arising from any injuries and losses that you have suffered from a motor vehicle or train accident.
