Inadequacy of sports injury compensation

[injuryupdate]

An article in the SMH today (see link) further highlighted the terrible state of affairs in Australia with respect to catastrophic spinal injuries in sport:

http://www.smh.com.au/news/National/Drunk-bikie-awarded-950000/2005/06/07/1118123841720.html

In this article, a motorcyclist, who was considered to be 80-100%responsible for his own injuries due to being drunk and letting an unlicensed drunk friend take him for a ride on his motorcycle, was awarded $1 million in compensation for becoming a quadriplegic, down from the usual $4.5 million because of his own gross negligence.

By comparison, a fully insured football player in Australia can expect a payout of only $250,000 if he becomes a quadriplegic, and in the vast majority of cases he does not have any rights to sue for a greater amount. A recent article in the MJA has pointed out how poor this compensation is, yet the government and sports will probably not act because they don't want to discourage people playing sport through hefty insurance premiums. see further details at our front page article:

http://www.injuryupdate.com.au/?HomepageID=104

Compensation is far more generous for spinal injury victims from all other causes in Australia, and in New Zealand, by comparison, the premiums for catastrophic sports injury insurance are completely paid by the government.

In Australia we have a government that is sitting on its hands with respect to sports injury. There are no sports injury policies at the Federal level and almost no policies to encourage people to play sport.

If you become a quadriplegic in Australia playing sport, the best thing in terms of looking after yourself financially would be for your friends to pick you up off the ground and load you into a car and drive it into a tree next to the sporting field. Then at least you might get a decent amount of compensation to cover your ongoing medical care.

[injuryupdate]

Bob Carr has just announced that in NSW there will be an extra Green Slip levy on car rego to include the cost of financing long-term care for those drivers who are injured but are at fault (e.g. drink drivers).

This is seen as a sensible outcome so there are no traffic accident victims left in the lurch as para or quadriplegics with no money.

However, drivers as fault (i.e. drink drivers, speeders, those driving stolen vehicles or in car chases) are going to be better off than people who are injured playing sport at no fault.

The maximum payouts for quadriplegia in sport are still around the $200K mark.

This is an outrage that the government values looking after at-fault drivers far more than people playing sport.

[injuryupdate]

Yet another tort law case with judges upholding a negligence verdict where plainly there was no negligence. How is a council meant to stop kids diving off trees into the river?

I agree this lad needs money to survive the rest of his life as a quadriplegic, but it is fraud to say it was the fault of the council. Just as when a council erects a 'no diving' sign on a bridge they should not be successfully sued for someone getting injured diving off a bridge.

Meanwhile, the maximum payout for quadriplegia in sport in Australia is $300,000. If you pay your OWN premium and get injured through a complete accident in sport, you get less than a tenth of the money than if you paid no premium and did something stupid (like dive into a shallow river).

These situations are outrageous, and it shows we have spineless politicians in Australia and corrupt judges that this discrepency between cases can occur.

See article:


Quadriplegic to keep $5.6m compensation
By Stuart Walsh
June 22, 2005
From: AAP
A YOUNG left quadriplegic after diving into the Murray River will receive $5.6 million in damages after a court today rejected an appeal against his payout.

Jason Ballerini was 16 when he was crippled in December 1996 after diving from a tree trunk and hitting an underwater obstacle at the Old Barooga swimming hole at Bullanginya Lagoon, near Cobram, in northern Victoria.
Three judges of the Victorian Court of Appeal rejected an appeal against the payout by Berrigan Shire Council, in New South Wales, and cleared the NSW Forestry Commission of blame for the incident.

The council's liability increased from 80 per cent to 100 per cent.

Justice Geoffrey Nettle said the council, as the occupying, controlling and managing authority, should have checked the swimming hole after a flood in 1996.

"Having then found that the area was no longer suitable for diving, as it would have undoubtedly found on inspection, it should have removed the log or put up a (warning) sign," the judge said.

According to current community standards of "reasonableness", the council was in breach of its duty of care by failing to take one or other of those two steps, he said.

The judgment stated the Forestry Commission's main concern was with maintaining, developing and exploiting state forests.

The commission did not create the danger and "unlike the council it had no particular reason to be aware of the danger", the statement said.

Victorian Supreme Court Justice Tim Smith originally awarded the damages to Mr Ballerini last September.

The agreed damages of $8 million were reduced by 30 per cent for Mr Ballerini's contributory negligence.

Today's court ruling also rejected Mr Ballerini's appeal over the discount.

Mr Ballerini said outside the court that he was delighted with the result.

"Words can't explain what I'm feeling at the moment," he said.

"It's just an amazing, amazing feeling."

He said he hadn't given much thought to how he would use the money, but he would be buying a new wheelchair and a house fully equipped for all his needs.

"It's going to mean more independence for myself," Mr Ballerini, who recently gained a social work degree, said.

"I can set myself up now and look to the future."

Berrigan mayor John Bruce would not say whether the council would seek leave to appeal to the High Court.

The council's lawyers had yet to digest the judgment before any decision was made, he said.

"We won't be rushing in (to make a decision)," Cr Bruce said.

Mr Ballerini's lawyer, Eugene Arocca, hoped the council would not appeal.

"We are expecting it, we are ready for it, but at this stage we have won round two and we are very happy for Jason, in particular," he said.

With interest, Mr Arocca estimated Mr Ballerini would receive around $6 million.

The judgment from Justices Nettle, Frank Callaway and Alex Chernov was unanimous.

[injuryupdate]

Another negligent driver gets a multi-million dollar payout for quadriplegia suffered in a car accident, yet sports injury victims must make do with $200K. This is an ongoing outrage that no one seems to care about:

Teen crash ends in $9.5m pay-out
July 5, 2006 - 12:21PM

A former Qantas manager paralysed from the neck down in a driving accident while on holiday in the Northern Territory has been awarded more than $9.5 million in damages.

Paul Anthony Imbree, 48, allowed his son's 16-year-old friend, Jesse McNeilly, to drive his company Toyota Landcruiser through the desert, from The Kings Canyon to Darwin, on April 2002.

But the unlicensed teen swerved when he came across a piece of tyre on the road, veering off the dirt track and into a sand bar.

The car then rolled, snapping Mr Imbree's neck, rendering him unable to move from the neck down and dependant on 24-hour a day care.

In the NSW Supreme Court today, Justice James Studdert awarded Mr Imbree $9,563,731 in damages, plus the cost of his health care since the accident.

The cost of the damages will be covered through the third party scheme covering the insurance of the car.

Mr Studdert said Mr Imbree had allowed his son's young friend to drive and therefore shared part responsibility for the accident.

He ruled the total amount of damages, to be decided on next week, should subsequently be reduced by 30 per cent.

Outside the court, Mr Imbree's lawyer, Andrew Stone, said his client should pocket about $6 million.

"We are very pleased with the result because it takes care of him (Mr Imbree) for the future," he told reporters.

Mr Stone said the case drew attention to the difficulties parents faced deciding when the right time was to put their children behind the wheel.

"Parents have a difficult time knowing when they should give their children the experience they need to drive," he said.

"We are pleased that the judge accepted that there are difficult judgments to be made in what level of driving conditions we expose beginners to and that not too much hindsight has been allowed in this judgment."

AAP