In this podcast, Accredited personal injury lawyers and BPC Lawyers Partner, Courtenay Poulden discusses what legal recourse is available to people who have sustained injuries on a ride or because of a ride.
Dan: You may have heard of the horrendous accident that occurred at the Melbourne show last week when a woman was struck by a roller coaster. Shyla Rodden is believed to have walked onto the track of the Rebel Coaster ride to retrieve her phone when she was struck by a moving carriage on Sunday. The 26 year old who was working at the show is believed to have been thrown into the air on impact and fallen nine metres to the ground. She consequently sustained significant injuries to the brain, ribs, arms, legs and feet at the time of recording this podcast, she sadly remains in the ICU. Of course, these types of accidents aren’t unusual in the context of theme parks with a history of terrible accidents, possibly none worse than the Dream World Water rapid ride that claimed the lives of a number of people. It begs the question what legal recourse is available to people who have sustained injuries on a ride or because of a ride? Well, to find out, I’m with award winning personal injury law specialist Courtenay Poulden from Beilby Poulden Costello, a leading Sydney compensation practice. Courtenay, another tragic case.
Courtenay: It is Dan, and as you said, they’re not uncommon incidents. Fortunately, not all of them are as tragic as the Dream World cases that you spoke of, or this very serious accident in Melbourne. But you’re dealing with machinery at heights and at speed and it’s always going to have risks for patrons.
Dan: Courtenay, what are the options for people who have been injured on a ride in seeking compensation for those injuries?
Courtenay: Well, there’s no question that the operators of the theme park have a duty of care to everybody who enters their premises to take reasonable care for their safety, and if there’s a breach of that duty, then there’s no doubt there’s legal recourse. It’s a different situation in some ways to a lot of other ways that you look at compensation. Because here you have not only a negligence case where breach of duty of care is important, but you also have a contractual circumstance whereby when you buy your ticket for the ride, you essentially enter into a contract with the operator of the ride, and one of their obligations that’s implied in that contract is that they will take proper care for your safety. Now, in those circumstances, their failures almost inevitably lead to you having rights to take proceedings against them.
Dan: Courtenay, what about those circumstances where some of those disclaimers might essentially try to abrogate responsibility? Do they hold up in the cold light of day?
Courtenay: Well, that will depend on the circumstances. You’ll find that most of the backs of the tickets, to the extent anyone looks at them, saying the clause that say that we won’t be liable for injuries caused by our negligence and otherwise, but in some circumstances they do get their protection, but most of them they don’t. I’ll give you some examples of where you have different problems. Let’s take one of the obvious circumstances where a person’s unsuitable for a ride by reason of their age or their height or their weight and that they’re let on in breach of their own regulations.
There are circumstances where the machinery that’s been used let’s take a Ferris wheel type situation or a ride where the maintenance has not been properly upkept and they haven’t complied with occupational health and safety standards. The design of the ride may not be suitable and certainly not suitable, or there may be operation errors. One of the obligations of an operator of a fun park or theme park is to ensure that its staff has had adequate and proper training. That might mean, for example, from your own experience, I’m scared of these things, now, I don’t go near them, but when I did, you’d be locked into a frame. You’d have to make sure that latches were properly in place and those types of things, failure to train your staff to perform those safety steps is also something that you probably can’t protect by reason of an exclusion clause in the contract.
Dan: Courtenay, I know that both you and I don’t know a whole lot about this particular case in Melbourne, but there is a suggestion that this girl has walked in front of this moving carriage. It does then enliven this topic around contributory negligence, doesn’t it?
Courtenay: Yeah, well, look, it has to be relevant to the issue of contributory negligence. Much would depend on, and I’m not sure of the factual circumstances, but if she put herself in danger by doing something that was contrary to the rules, then the question of negligence or contributory negligence must arise. It’s not uncommon, from my experience, for there to be signs up do not dismount ride at any time, or something along those lines, and in the face of that type of warning, it may be difficult for her to argue that her conduct, whatever it was, trying to get her mobile phone or what have you, was not something for which she accepts her own responsibility. But I say that without having investigated any further than reading the newspapers and I’m not sure what’s happened. But you’re right, that must be a relevant factor.
Dan: And Courtenay, I suppose it’s probably worth emphasising that just because you may have contributed to the accident doesn’t necessarily mean that you miss out completely on compensation.
Courtenay: That’s exactly so and I mean, that’s what you need legal advice for Dan, and then you take, for example, somebody who was walking down an area next to one of those slippery slide pool rides and slipped over and fell and they were running. Well, it may well be, for example, that they were negligent for having a slippery surface where they knew that patrons would be walking. But by running you may have increased the risk to yourself. So the way that, that’s unwound in a legal sense is that there’s original finding of negligence and let’s just say you’re negligent and you get $100,000 if a court or a tribunal is to find that you’re 50% responsible for yourself. It’s not that you don’t get anything, it’s just that you get only 50% of the verdict. So it’s important to make sure that you investigate things by way of legal advice, rather than just assuming that I played a part and therefore I have no rights.
Dan: As we know, in the Dreamworld case, there were a number of lives that were lost. How do you know family members go about claiming compensation in the event that one of their loved one dies as a result of one of these rides?
Courtenay: That depends very much on the circumstances of the family. For example, if a father of two was badly injured on a ride, or in fact died on a ride, then there’d be a claim on behalf of his family for the loss of dependency upon him, both in a financial and other sense. In circumstances where it’s not someone who has dependence, the law allows a claim to be brought in what we call nervous shock. What that means is, if you’re a close member of the family, which is generally defined by the law to be parents, siblings and brothers and sisters, you can bring a claim if you have suffered a recognised psychiatric disorder as a result of the trauma following the death of your close family member.
Now, that extends to not only an allowance for the way that it’s affected you emotionally and physically, but if it’s impacted upon your lifestyle, your work. There’s also entitlements for claim for financial losses as well. Australian law and certainly New South Wales law doesn’t recognise the concept of a wrongful death claim like they do. For example, in the United States, we have a compensation system which allows payments based on the loss consequent upon the deaths, rather than the fact of the death itself. So it’s certainly something you need to get advice on, because the law in that area is pretty complex and there’s a lot of changes coming in precedent cases at the moment. So, yeah, you certainly need to get advice if that horrible event befalls you.
Dan: And getting advice very promptly Courtenay.
Courtenay: I think that’s important, particularly in the types of accidents we’re discussing. It would be inevitable that there would be an investigation by government bodies in relation to any serious accident in a theme park. But you want to monitor things yourself and to be able to get hold of photographs, speak to witnesses, get statements as soon as you practically can, because we all know that people’s recollections get worse as time goes on, and rather than relying upon the police or the work cover or some other government body to investigate, you want to be on the front foot yourself to make sure that you’ve done everything you can to advance your case and that usually means getting legal advice as soon as you practically can.
Dan: And importantly, there are time limits with many of these types of claims as well, isn’t there?
Courtenay: There certainly are. The general time limit for tort cases is three years from the date you know you’ve got a cause of action, and there’s a legal definition of that. In contractual cases, that might be as much as six years. But you don’t want to be taking any risks and taking any chances about limitation periods. They are strict, and they can have the effect of excluding your entitlement. So better to find out early on and if it is the fact that your lawyer tells you, look, we’ve got some time to do this, when you can sit back, prepare your case, and make sure you meet that deadline. But certainly, certainly you don’t want to take risks with statutory limitation periods passing.
Dan: Courtenay, thanks for joining me.
Courtenay: Pleasure, Dan. Nice talking to you, as always.
Thank you for listening. If you have any questions, please call BPC on 02 8280 6900.