Broken Toes Payout Highlights Liability Risk for Owners

Monday, September 23rd, 2013
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Knickerbocker Hotel
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An exorbitant compensation sum awarded to a woman who injured her foot in the car park of a Bathurst pub has triggered concern amongst property owners about liability risks.

The plaintiff in the case, 52-year-old Helen Wurth, was left with a sprained right ankle, bruised knees and two fractured toes after stepping into a partially-covered drain less than 15 centimetres in depth in the driveway of Bathurst’s Knickerbocker Hotel back in February 2011.

Wurth, an administrative worker at Nepean Hospital who was in Bathurst for a horse racing festival, subsequently sued the Knickerbocker for ongoing pain and the loss of 25 per cent use of her right foot.

In a decision which has left the Knickerbocker’s owner stunned and triggered heightened concern about liability risk among  property owners and publicans, Judge Leonard Levy of the District Court of NSW awarded Wurth the impressive sum of $456,000.

Levy pointed to the loss of mobility and incessant pain suffered by Wurth as a result of the injury as the reasons behind his decision.

“The plaintiff experiences ongoing pain, discomfort and restriction of movement in her right foot in the region of the fractures. She is never free of that pain. This causes her difficulties with prolonged walking and restricts her ability to use stairs,” he ruled.

The compensation sum includes $130,000 for future economic loss, $75,000 for non-economic loss, and $169,000 for future domestic assistance expenses, as a result of her confinement to the family home, which is situated on a 25-acre property to the south of Penrith, where Wurth and her husband keep horses.

Scott McCallister, owner of the Knickbocker, said he could not believe the size of the payout.

While McCallister had informed both Wurth and her husband about the defective grate during their time at the Knickerbocker, Levy said other measures should have been adopted to prevent pedestrians negotiating the driveway from coming to harm.

“Additional steps were required to protect pedestrians using the driveway from harm,” the judge ruled. “Such steps could have been in the form of warning signs, barricades or a simple covering comprising a sheet of timber or metal, as is commonly seen as a temporary measure to cover holes due to roadwork or footpath construction work.”

The decision has caused much concern amongst members of the hotel and pub industry, with one industry representative saying it could lead to a sharp rise in insurance costs for publicans.

“Any large payment will have an impact on insurance premiums and this should be a concern for all businesses,” Paul Nicolaou, chief executive of the Australian Hotels Association, told Fairfax Media.

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