Over the past 13 years at Proclaim my colleagues and I have had the privilege of working with our clients on some notable claims – several of which have been reported in legal circulars and the mainstream press. Examples include:
- Strong v Woolworths  HCA5 – we were able to extricate ourselves at an early stage and well before the High Court of Australia judgment against Woolworths;
- Goode v Angland  NSWSC 1014 – the Court accepted that our insured jockey was not at fault in the terrible accident to Mr Goode and where the ‘dangerous recreational activity’ defence was found to have application in professional horse racing.
- South Sydney Junior Rugby League Club Ltd v Gazis  NSWCA 8 – a finding which limited the duties of a head contractor to a subcontractor and declined to infer corporate knowledge from evidence that a non-management employee had witnessed unsafe work practices by the subcontractor; and,
- Smith v Croote Pty Ltd  NSWCA 35 and QBE v Orcher  NSWCA 478 – which limited the duties of venues and security contractors to patrons and emphasized the needs for Plaintiffs to prove causation.
While it is rewarding to have an influence on such signature cases, the reality is that litigation of this magnitude is an expensive undertaking for our clients and not to be taking lightly. Often these cases are all or nothing cases as otherwise the legal costs incurred in defending such matters can easily outstrip the potential damages awards – and costs continue to rise due to the increasing use of expert evidence, more intensive case management and higher court scales for legal fees.
Regardless of how strong we consider our case to be it is also an exercise fraught with risk – the decision in Goode followed a prior loss in a Tasmanian decision involving another injured jockey Dodge v Snell  TASSC 19 (a decision that Goode indicates was probably incorrectly decided). Where a decision is taken to run a matter to hearing our clients often have to prepare themselves for the fact that they may lose at first instance and prepare to outlay the cost of one or even two appeals.
It continues to be our view that mitigation is preferable to litigation in most cases and our clients should pick their battles wisely.
Written by Richard Thomas