Swain v Waverley Municipal Council
February’s 3-2 High Court decision in Swain v Waverley Municipal Council has put the spotlight back on to personal injury payouts and tort law reforms.
The High Court decision reinstated a $3.75 million negligence payout awarded to Mr Swain in 2002 after a swimming accident five years earlier left him a quadriplegic. The 2002 decision was one of a series of high-profile cases at the time, which led to nationwide reforms in tort law.
In 2002 Mr Swain successfully sued Waverley Municipal Council for negligence after he jumped into the waves at Bondi Beach and suffered spinal injuries after striking a sandbank. Mr Swain successfully argued the council was negligent in not warning of the sandbank running through the designated swimming area that had been marked out by flags.
The decision was overturned on appeal a year later. The majority decision of the Court of Appeal determined that there was insufficient evidence for the jury to find that the Council had been negligent.
Mr Swain then took his case to the High Court of Australia, with the majority deciding that the Court of Appeal decision was incorrect. The High Court decided there was sufficient evidence for a jury to be reasonably satisfied that Waverley Council had been negligent.
The 2002 decision led to sweeping reforms of tort laws in all states. Under Victorian tort law reforms, people injured in Victoria cannot seek damages for pain and suffering unless they have a significant injury – either 5 per cent physical (non-psychiatric) impairment or 10 per cent for psychiatric injuries. There is no discretion for individual circumstances. This has left many people without a right to compensation.
County Court figures for the first 12 months since the reforms were introduced in Victoria show an 88 per cent drop in personal injury writs filed in the County Court. Injured people are missing out on compensation because they cannot satisfy the threshold test.
The Law Institute of Victoria (LIV) and Law Council of Australia maintain the belief that the government has over-reacted to high profile cases such as that of Mr Swain, resulting in the unfair erosion of significant legal rights from injured people.
More information
From the LIV Bookshop
Torts Law in Principle, Baker, $72.95
Torts: Nutshell Series, Sam Blay, $21.95
Disclaimer:
The information in this newsletter is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Brendan Kelly of our office. | 
