A look into Glover v Fuller: Pre-existing conditions and apportioning liability

A recent decision handed down in the ACT Supreme Court addresses a contested legal issue in civil negligence matters. Glover v Fuller poses the question of whether a plaintiff’s pre-existing injury, disease, or genetic condition should discount-or potentially extinguish- a defendant’s liability. It is important to note that this article encompasses only a sliver of what is an extensive debate. As expressed by McWilliam AsJ at [3], “…without wishing to appear flippant by adapting a line from Shrek, the animated ogre in the film of the same name: this case is like an onion; it has many layers.”

Glover v Fuller involved a 12-year-old boy who sustained injuries in a water-skiing accident. Jack Glover (the plaintiff) was being towed behind a motorboat in a tube, which was driven by his aunt’s partner (the defendant). The motorboat was travelling at considerable speed when it was forced to come to a sudden stop. This caused the tube to flip, resulting in the plaintiff being wrenched backwards and dragged under the water. The plaintiff suffered a back injury and has been experiencing ongoing back pain since the accident.

Upon initial investigation of the pain, it was revealed that the plaintiff was suffering from a preexisting spinal condition: bilateral spondylosis. Discovery of the plaintiff’s condition raised the issue of whether the pain was partially attributable to the pre-existing condition, rather than the accident exclusively.

To begin, factual causation must be established by using the ‘but for’ rule. As outlined in Adeels Palace Pty Ltd v Moubarak, the following question is asked: ‘but for the negligent act or omission, would the harm have occurred?’

McWilliam AsJ suggested that the defendant was operating the motorboat in a manner that could be considered dangerous, especially given the age and experience of the tuber. The defendant failed to inform the plaintiff of the necessary safety signals, nor was the spotter properly briefed. The plaintiff was therefore unable to communicate with the defendant while being towed. That, coupled with the speed of the boat, were instrumental factors to the accident.

The defendant’s actions, as outlined above, display a lack of safety precautions taken. The defendant owed the plaintiff a duty of care but failed to uphold it. Had more extensive safety precautions been in place, it is likely that the plaintiff would not have suffered harm to the same degree. The ‘but for’ test has therefore been satisfied and factual causation established.

McWilliam AsJ then reviewed the evidence to ascertain the longevity and severity of the injury. Early medical scans indicated that the pain and damage was caused by the water-skiing accident. However subsequent scans indicated that the injuries from the accident had plateaued in the years following. McWilliam AsJ drew the conclusion that the more recent pain is likely to be a result of the ongoing spinal condition, rather than lingering effects of the accident.

In awarding damages, McWilliam AsJ stated that the existence of the bilateral spondylosis and subsequent injuries sustained by the plaintiff were enough to reduce the scope of the damages, but not discharge them completely and awarded the plaintiff damages in the amount of $92,585.00. The case highlights the importance of properly considering any pre-existing conditions when assessing a claim.

If you have suffered an injury and need advice on making a claim our expert team in NSW and ACT are happy to provide an initial no-obligation appointment for free. If we think your claim has merit, we can act for you on a No Win, No Fee basis.

*This article was prepared with the assistance of Elizabeth Nethery*

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