The bill of rights promises, among other things, full refunds for trips that are cancelled due to mechanical failure, and a backup power source on every ship to keep emergency systems running in the event of a main generator failure but at this stage applies only for North American (US and Canada) passengers.

The CLIA, which represents 25 major companies including Carnival, Royal Caribbean, Norwegian, Holland America and Cunard, has said it has submitted the bill of rights to the International Maritime Organization, “requesting formal global recognition and applicability.”

In reality, the so-called bill of rights adds no significant benefits to cruise ship passengers over and above what is currently provided as standard industry practice and is criticised by many as being merely a public relations fiasco to neutralise the furore over earlier incidents including the Carnival Triumph fire that left passengers stranded aboard a drifting cruise vessel in the Gulf of Mexico for 5 days in February and the Grandeur of the Seas fire in May.

Also in May, Paul Rossington and Kristen Schroder from New South Wales were reported missing as their ship the Carnival Spirit docked in Sydney at the end of a 10 day Pacific cruise. Surveillance footage captured them as they went over a balcony railing outside their cabin on the night of May 8 when the ship was about 65 nautical miles east of Forster, on the mid north NSW coast.

Far more important for passengers is that their ticket imports the terms of the Athens Convention of 2002 or, if it doesn’t, the country of the port of departure or return has confirmed its ratification of that convention.

Grandeur was today set ablaze at sea after what passengers described as “big explosions” and the captain declaring a ‘mayday’ emergency. The seven-night cruise was forced to end early and the ship returning to the US port of Baltimore. All 2,224 passengers were forced to disembark in an unscheduled visit to Freeport, Bahamas and are to be flown back to the US.

Grandeur is a sister ship of the largest cruise ship to base itself in Australia - Royal Caribbean’s Voyager of the Seas – which sails from Sydney during the southern summer. Both ships are registered in Bermuda, the “flag state” of the vessels.

The legal regime that applies to cruise ships is complex. On some occasions, the law applicable to events occurring on the vessel, including personal injury, is the law of the flag state as the vessel is deemed to be a part of the state represented by its flag. On other occasions, the law of the place where the injury occurs, is the applicable law.

The Convention on Limitation of Liability for Maritime Claims (London) 1976 and 1996 protocol allow liability limits for passenger death and injury claims. They have been incorporated into the law of Australia by the Limitation of Liability for Maritime Claims Act 1989.

The convention does not establish a cause of action, rather it simply limits a “seagoing” vessel’s liability for most types of losses in tort as a result of negligence and contract and in particular:-

• injury occurring on board or in direct connection with the operation of the ship
• loss resulting from delay in the carriage by sea of cargo, passengers or their luggage

It applies if the ship is registered in a nation which is a party to the convention or located in the waters of such a nation or on the high seas on a voyage between two such nations. The convention establishes apply a maximum liability for multiple injuries. Under the 1976 Convention the liability limit for the vessel is:

 46,660 SDRs x passenger capacity (up to maximum of 25 million SDRs)

At 46,666 SDRs per passenger, the upper limit per vessel of 25 million SDRs is topped out with a passenger capacity of 536. At 3,138 passengers Radiance’s per passenger cover under the LLMCA regime is 7,967 SDRs or AUD$11,642.

The 1996 protocol came into force in May 2004. The protocol increases per passenger allowance for calculation of the vessel’s liability limit, to 175,000 SDRs and abolishes the per vessel upper limit. Accordingly Radiance’s maximum liability under the 1996 protocol is:-

 175,000 SDRs x 3138 = 550 million SDRs (AUD$804 million)

A shipowner liable is not entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.

The Convention Relating to the International Carriage of Passengers and Their Luggage by Sea (Athens) 1974, which is not ratified by Australia or the USA, creates a per passenger personal injury claim limit, of 46,666 SDRs. Contributory negligence rules apply but legal costs and interest are in addition. UK (incl Bermuda), Bahamas, Greece, China and Russia are notable ratifying nations.

Fault or neglect is presumed in the case of shipwreck, capsize, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship. It does not apply to injuries occurring in “a marine terminal, station or on a quay”.

A new Athens Convention of 2002 is set to enter into force on 23 April 2014, after the last of the required 10 ratifications were reached in April 2013 which raises the limit at which carriers can set their liability to 250,000 SDRs per passenger.

The 10 ratifying states are: Albania, Belgium, Belize, Denmark, Latvia, Netherlands, Palau, Saint Kitts and Nevis, Serbia and Syrian Arab Republic. It has been also ratified by the European Union.

The carrier has a complete defence if the incident causing injury is an act of war, natural disaster, insurrection or “was wholly caused by an act or omission done with the intent to cause the incident by a third party” eg terrorism.

Cruise ship injury claims are therefore legally complex in terms of deciding the applicable law. Other complexities relating to forum and damages must also be carefully considered to ensure the proper recovery of fair compensation.

The rights of Australian Grandeur passengers will be subject to their cruise contract but there is a good chance Australian law can be made to apply.

“At the very least it would seem that the solicitors acted in a way which was contrary to the objects of the Workers’ Compensation and Rehabilitation Act (WCRA)”, said the court in the context of a “recent invention” argument about exactly how Tim Schonell had sustained his ladder related scaffold injury at the Paddington Barracks construction site in June 2008.

“In the ordinary course of litigation, an allegation of recent invention would be met by a signed statement by the person accused of the invention to demonstrate the consistency of the person’s account. That cannot occur in this case because of the method used by the plaintiff’s instructing solicitors to take instructions”.

Rather than prepare a statement for the plaintiff to sign – the conventional course preferred by His Honour – the plaintiff had given instructions on versions of a lawyer-prepared third person account of events. Because the parties agreed between them on production of a redacted version of this record, the court left undecided whether such a document was “a written statement made by the claimant” and therefore disclosable under s 279.

When cross-examined as to inconsistencies between the earlier version of the incident put to medical specialists his lawyers had briefed and the slightly different version he gave from the witness box, Schonell explained that his “solicitor had a little difficulty understanding some of the terminologies I was using as well. It was foreign to him what I was talking about. I don’t know whether he missed it then.”

The ‘terminology’ variations had mostly been concerned with “various height of objects, including the ladder and the fact the planks were aluminium, not wood”.

Had Schonnel been believed that his loss of balance when stepping from the scaffold to the ladder and consequent knee twisting injury – was due to his left foot being caught between the platform planks (the later version), rather than merely attempting to return to the platform (the earlier version) – the employer’s admitted failure to deploy “plank clamps” to prevent the scaffold planks slipping, would likely have been enough to notch up a win.

But His Honour found the plaintiff “to be a person given to exaggeration and to claiming greater an injury than he actually suffers”. He also concluded that as “an intelligent man who would have been able to describe the mechanism of the injury in simple terms”, it was unlikely that the earlier version was erroneous and more likely the later version was a fabrication or embellishment.

In such circumstances, the absence of “plank clamps” – however negligent it might have been not to provide them – made not a jot of difference to the causative elements of the injury.

Damages – claimed at $2 million – were assessed at $1.43 million including $125,000 for general damages for a 33% whole person impairment with very significant ongoing pain.

As a result of the benign ruling on fault that followed from how the injury was found to have occurred, Schonell’s claim ended with a dismissal against which an appeal has subsequently been lodged.

Schonell v Laspina, Trabucco & Co Pty Ltd [2013] QSC 090 Martin J 11/04/2013

The improvisation employed offcuts of steel U-shaped channel that unfortunately exposed a razor-sharp edge that was to become the reason for Mitchell Heywood’s injury.

It was against a loose piece of this unfixed channel that he had placed on a toolbox ready to install, that he accidentally bumped his elbow when descending a ladder. He severed his left ulna nerve and thrown into excruciating pain .

He commenced a damages lawsuit alleging that his employer should have used a safe commercially available product designed specifically for the task, not offcuts with razor-sharp edges. Less persuasive were the further allegations that he ought to have been instructed in a safe method to descend a ladder and not to leave sharp edges exposed, of tools and materials in use.

In its defence, WorkCover said that the only obligation on the part of the employer was to take reasonable care.

The court agreed.

“There is no obligation to safeguard an employee from all perils. It is not a duty to avoid all risks by all reasonably affordable means. A duty of care is not a general duty to protect careless people from the consequences of their own carelessness”.

In the contest of experts, it was the view of the defendant’s safety consultant that was preferred in that the method used for the Frangipani condominiums was deemed both reasonable and appropriate.

“The plaintiff always knew he was handling a sharp object. He created the hazard himself by placing an object which she knew to be dangerously sharp with the sharp edge exposed on the toolbox close to the ladder he was using. The plaintiff conceded that he knew of the problem and that it was dangerous. He knew where the sharp object was before he descended a ladder and knew it was in a position which would be close to the point at which he would eventually step off”.

In the circumstances, the court was of the view that the plaintiff had not established that the employer had breached its duty.

“It was not a difficult task, the plaintiff knew how to do the task and the injury came about through the actions of the plaintiff”.

The court fulfilled the exercise of determining the plaintiff’s theoretical loss which totalled out at$295k based on a 28% impairment of upper extremity function attested to by orthopaedic surgeon Paul Robinson.

WorkCover’s  Facebook attack – uplifting activity pics  to demonstrate “a lack of self-consciousness about scars” and “sufficient strength in his left arm” – proved successful in part.

Although the post of a photo showing Mitchell “picking up his girlfriend and swinging her around” did not faze Dr Robinson in sticking to his assessment, the court thought the picture “inconsistent with the plaintiff experiencing immediate pain when lifting and manipulating a live weight of about 60 kg”, a finding that was largely immaterial to the calculation of the theoretical damages anyway.

Heywood v Commercial Electrical Pty Ltd [2013] QSC 052 Brisbane Martin J 11/03/2013

The plaintiff had contended breach of duty and that the premises were not “reasonably fit for the purpose for which they were supplied” contrary to the statutory warranty implied by Trade Practices Act s 74(1).

The trial court ruled  the hotel had not breached its duty in tort or in contract because the needle was “unobservable to the reasonable observer”, including the cleaners and their supervisors and that any TPA statutory warranty must be read in the context of Civil Liability Act liability limitations and preclusions.

On appeal, the court found that the needle had probably “been covered by dust, hair or fluff” and that had the contract cleaners who performed the ‘departure clean’ to the standard they espoused – albeit at a cost to the hotel of just $44 - the needle would have been detected and removed.

The trial judge had clearly erred: his finding that the cleaners had done their job adequately was “unsustainable” and such conclusion was “glaringly improbable”. Rather – said the appeal judges – the room was left “in a filthy condition” as a result of which it increased the risk of harm to the guests.

“A reasonable person would have taken the precaution of properly cleaning the premises”. The requisite standard of cleanliness did not need to be extraordinary, but merely “that which a provider of services would deem necessary to provide in order and which a user of services would consider acceptable”.

Ms Wright having established that the injury had been caused as a result of such breach of duty, the appeal judges ruled the judgment below should be set aside. Damages were awarded – in the undisputed sum assessed by the trial judge – for the very significant anxiety and depression associated with a potential HIV infection.

Wright v KB Nut Holdings Pty Ltd [2013] QCA 066 Brisbane Muir JA and Margaret Wilson and Douglas JJ 2/04/2013

Thomas Ley’s claim was for pins & needles down his arm that began to occur while “slicing meat” on 4 January 2011. On 1 February 2011 – his second day back on regular duties after three weeks annual leave – he had agonising pain in the back of his neck and left shoulder.

His claim for that injury was accepted.

Orthopaedist Richard Gibberd reported on 12 December 2011 to Woolworths that he had suffered a minor aggravation on 4 January to a pre-existing degenerative condition.

The same day and 4 days before the grocery giant issued a notice of assessment at 0%, his solicitors urgently lodged a NOCD under caution that the injury may have had its onset at his employment commencement date of 17 December 2008.

His NOCD recorded the event that resulted in his neck injury as repetitive lifting, manoeuvring and carrying boxes of cryovaced ”primal meat” cuts weighing up to 25kg - often in cramped cold room conditions – over a 6 week period.

The NOCD was requisitioned by Woolworths on the basis that the injury for which he was seeking damages was different to that referred to in his application for compensation. It acknowledged an entitlement to proceed under section 237(1)(d) only and specified copious conditions upon which it was prepared to allow the claim to proceed.

Ley refused to withdraw the NOCD and sought a section 258 response only in respect of the unassessed psychological injury. He sought declaratory relief that he was entitled to proceed under section 237(1)(d) in that the neck injury had already been assessed.

Picking up where he left off in Muckermann v Skilled Group, his honour re-emphasised that an injury must not be constrained in the assessment process with a view of how it originated. Such history is relevant only in the evaluation of common law liability and damages.

“So while it may be that different events within the meaning of that term found in section 31 of the WCRA have been expressly or by implication identified when the application for compensation is compared to the notice of claim for damages, on the view I take, [it is] the same injury”.

That Dr Gibberd had assessed a discrete exacerbation injury and disagreed with the notion that the applicant had suffered an injury over a period of time because of workplace practices, was irrelevant.

“The doctor was expressing a medical opinion not a conclusion involving a mixed question of law and fact that the question of the meaning of the term “injury” poses.

To illustrate the absurdity of the position in which a claimant may find himself – what his honour described as a “parallel universe” – the grocery titan in May 2012, referred a series of questions to surgeon Brett Halliday to elicit from him an answer under WCRA section 258 (1)(a)(ii), that exposure to the work practices described was not responsible to any extent for the applicant’s condition. That answer in hand, Woollies then concluded that “there being no injury to be assessed, he was precluded from seeking damages” unless he could successfully challenge its decision in a review or appeal.

Such ruse would not succeed in the case of Mr Ley.

“The respondent would have it that the applicant may only seek damages for whatever injury he sustained on 4 January 2011…. For the reasons I have given this contention should be rejected. The applicant’s neck injury has been assessed. The nature, extent and cause of it and how it might sound in damages should be explored under parts 5 and 6 of chapter 5 of the WCRA and if it must be, at a trial.”

The artifice constructed by Woolworths in an endeavour to shrink the gateway through which the claimant was required to pass to argue for damages, was in this instance, ill-conceived. The declaration sought by the applicant was granted with costs.

Ley v Woolworths Limited [2013] QSC 059 Townsville North J 14/03/2013

They referred him to a Medical Assessment Tribunal for a decision on the nature and permanent extent of that impairment without asking for any information about its cause.

The tribunal recorded a “major depressive disorder” with 5 % impairment. Subsequently a notice of assessment issued describing it as a “secondary major depressive disorder”.

In due course, Muckermann filed his Notice of Claim Damages for the epicondylitis and a psychiatric injury “resulting from alleged bullying and harassment” to which he claimed to have been subjected following his return to work on light duties from January to May 2008.

The NOCD, which gave particulars of the offending conduct, was deemed compliant in December 2010 and a compulsory conference based on that notice was subsequently held without resolving the claim.

However in their defence to the Statement of Claim based on all NOCD detailed injuries, WorkCover’s solicitors contended the plaintiff had failed to comply with section 295 (a) in that the issued notice of assessment was in respect of a different psychiatric injury, namely one consequential upon or “secondary to” the physical injury, rather than any bullying or harassment.

WCQ in its capacity as damages insurer, contended that the MAT “must have” been acting on the premise that the injury it was assessing was one arising out of or “secondary to” the pain and suffering associated with the physical injury.

Noting that the tribunal has no role to make “findings upon events as opposed to “injury”, his honour found the argument to be too much of a stretch.

Traversing the WCRA consequences of these concepts, he noted: “While for both compensation claims and damages claims issues concerning both injury and event may have to be considered in general terms, injury is a focus of a compensation claim and event has much greater significance in the damages claim” because that is what a claimant is required to establish under section 31 and elaborate upon in the NOCD.

Noting also that the notice of assessment has a  “gateway” function beyond that of determining compensation, namely for “the regulation of access to damages”, in this case the injury – from whatever ”event”  - had been duly assessed and was properly the subject of the damages proceedings.

WCQ had no power to qualify the injury assessed by the MAT by referencing it to an event as it had purported to do by use of the ”secondary” description.

The court emphasised that the facts of the case were unusual in that WorkCover had accepted the psych injury without any application from the plaintiff and without asking for information as to its cause.

In such circumstances, WCQ’s conduct was even less commendable: That one of many objects of the WCRA is “ensuring that worker’s are treated fairly by insurers should not be forgotten.  …To set up as a defence…. that a notice of assessment ambiguously suggests another cause [for the assessed injury] finds no support in the WCRA. To do so in the circumstances applying here offends against the objects of the act. WorkCover and the plaintiff may have been at cross purposes about the plaintiff’s attribution of the cause for his ‘psyche’ injury but that was, on the view I take, of WorkCover’s making”.

The relief ordered was a declaration that the psychiatric injury claimed for, was indeed the one that had been assessed.

Muckermann v Skilled Group Limited & Anor [2013] QSC 051 Brisbane North J 6/03/2013

Vikki Silvester’s case trial was that she suffered constant headaches, neck pain extending down her arms and low back pain all of which escalated to an extreme level for three “bad” days each month.

A detailed description of the features and deficits of a “good day” and those of a “bad day”, were set forth in a written “quantum statement” tendered at the start of her testimony in the three day trial.

She required painkillers daily and could not resume employment as a reception supervisor at a Mackay medical clinic. Her husband had since the accident assumed the role of “doing pretty much everything about the house”.

The gotcha videos –shot in May and September 2011 over a number of days – depicted her socialising, shopping and moving about “reasonably quickly without any discomfort … without demonstrating any obvious indication of pain or stiffness”. There was even film of she and her husband attending an evening rodeo with no signs of apparent discomfort and no hesitation in leaping down the bleach steps when leaving.

Specialist Ulrich Dörgeloh for Suncorp, considered the surveillance footage to depict a “significantly different” presentation in terms of range of movement and pain, to that which he had observed in the clinical context.

The same view, but to a lesser extent, was taken by the plaintiff’s own specialist, John Pentis. But both doctors agreed that the symptoms could vary in intensity from day to day.

In yesterday’s judgment, the court saw need – as a result of the video – to “be cautious before acting upon the plaintiff’s account of her pain” and prompted the finding that “her presentation in court did not truly reflect the extent to which the injuries affect her”.

His Honour was nevertheless impressed with both experts and concluded there was significant symptomatology representing a 40% restriction in her future work capacity.

Past loss of income was assessed at $90,000 and for the future, $166,000.

The court also accepted that there was an average 7.5 hours per week gratuitous care provided by Vicki’s husband in respect of “heavier household tasks”, notwithstanding reservations “about the reliability of the plaintiff’s evidence”.

Past care was allowed at $23,000 and for the future, $24,000.

Vikki’s total award was $378,000. Quite likely a good day.

Silvester v Husler & Suncorp Metway Insurance Limited [2013] QSC 026 Townsville North J 20/02/2013

NSW farmer, Allan Gillogly had won from the Supreme Court an extension of the three-year injury compensation time barrier in June 2012, on the grounds that he had only lately been able to discover the corporate identity of the restaurant proprietor.

He swore that the chair on which he had been seated and which collapsed to the floor, appeared to have “previously been broken” and had been unsuccessfully repaired with glue.

After years of apparent vacillation about giving his NSW solicitor the go ahead to bring a claim, he finally consulted a Queensland lawyer on 11 January 2012, just one day before the claim period expired.

With no time at all even to begin the pre-court procedures mandated by the Personal Injuries Proceedings Act, his solicitors filed an originating application two days later (one day after the limitation period had expired), seeking an extension and for leave to start proceedings under PIPA s 43.

This strategy ultimately proved fruitless with the appeal judges deciding – despite agreeing there was an arguable case - that the accurate corporate identity of the restaurant proprietorship “was not a material fact of a decisive character” the recent discovery of which could justify the exercise of discretion to extend time in the plaintiff’s favour.

After all, the plaintiff could simply have commenced proceedings against “Weis restaurant” given that it is permissible for defendants in Queensland civil proceedings to be identified by way of firm name regardless of whether or not such name is registered.

In any event, it could not be said that the legal identity of the owner was beyond the plaintiff’s means to discover by reasonable enquiry. You could for example have instructed his solicitor to identify the proprietor “by the simple expedient of a business name search”.

All he could eat, was all Allan could get.

Weis Restaurant Toowoomba v Gillogly [2013] QCA 021 Brisbane Margaret McMurdo P and Fraser JA and Daubney J 15/02/2013

A labourer feels a twinge deep in his back after a heavy or awkward lift or pull but rather than report it, decides to takes it easy until end of his shift. Escalating pain over the next few days leads to an emergency room visit. The injury is eventually reported and diagnosed but the delay raises suspicion.

Such was the history for 45-year-old warehouse picker Richard Adam, who  despite “reservations about credit”, was believed in his account of such an injury he suffered in March 2010 when awkwardly heaving a stack of milk crates by use of a hook.

“It was late [in the day] and the onset of pain was seemingly transitory”. A sufficient explanation, according to the Supreme Court in Rockhampton, for his failure to immediately report the incident in compliance with a factory policy that workers were reminded of at a toolbox meeting just two days earlier.

Undeterred by this setback, labour hire agency Skilled Group and host employer National Foods saved their best arguments for an attack on Adam’s contention that the accident would cause him a lifetime of lost income.

They had plenty to work with in terms of Adam’s conduct both before and after the milk crate injury.

Desperate to return to work, he told GPs in September 2010 (falsely, he later claimed) that he had fully recovered to gain a medical clearance for a labourer’s job at a meatworks. Both doctors’ observed no significant disability.

Adding to the “confusing” picture, he only sought medical attention twice over 17 months and was incensed that his return to work program was for only two days rather than his customary six days per week.

Most damaging was the concealment of his four week return-to-work at the abattoir, in his superannuation disability benefit claim and the withholding of a prior 2005 New Zealand back injury from his history to forensic medical specialists.

And very “variable symptoms” – ranging from the unobservable on the one hand to highly agitated the other – added to the “odd” impression that Adam gave.

His counsel claimed these apparent inconsistencies were due to the Plaintiff’s contrarian personality, not dishonesty and His honour agreed that many of the seemingly adverse issues could be explained away and “no one of them is of itself compelling”.

But having to decide between an injury which fully resolved within a few months on the one hand and the permanent aggravation of pre-existing pathology on the other, his honour ruled that the “puzzling” evidence was more likely to be consistent with the former.

“I am satisfied there was an initial injury” but “what evidence there is points to a [full] recovery.”

Dr Cook’s orthopedic support for the plaintiff case – although supportive - was of no use to his case in that it was  ”reliant upon the history provided and … [assumed an] honest presentation” by the plaintiff.

Vanquished on his loss of income claim, the three day trial resulted in a judgment of just $16,000.

Adam v Skilled Group Limited and Anor [2013] QSC 007 Rockhampton McMeekin J published 13/02/2013