IN a landmark decision, a Gold Coast couple was found liable yesterday for the injuries of a house guest who dived off their fence into a canal and broke his spine.
Gold Coast business couple Alex and Pam Makauskas and their insurers could be faced with a bill as high as $2 million after the decision. The jury verdict is likely to have widespread ramifications for householders and the insurance industry.
A Brisbane Supreme Court jury took two hours to find the Makauskases, who were in New Zealand at the time, were 70% responsible for injuries sustained by Paul Borland, now a tetraplegic. Borland, who was at the plush house as a friend of the Makauskases' son, was found 30% responsible for his injuries.
Borland, now 28, of Ashmore, will be wheelchair-bound for the rest of his life. Before the accident he was a carpenter.
The jury found that as home owners the Makauskases had breached their duty of care by not erecting signs warning, either in words or by picture, about the dangers of diving into the canal. It found they also breached their duty of care by having a fence which by its design could have invited someone to climb and dive off it.
The jury found Borland's injuries were a result of a breach of duty and Borland was unaware of the dangers when he dived in the canal.
The result is headed for the Court of Appeal as lawyers for the Makauskas family immediately asked the judge to refuse to accept the jury's verdict.
Sandy Thompson, QC, for the Makauskases, asked Justice Brian Ambrose to set aside the verdict and replace it with a judgment for the defendants. However Justice Ambrose said no matter what the judgment the case was headed to the Court of Appeal and he would not refuse to accept the jury's verdict.
Justice Ambrose then gave judgment for Borland at 70% of damages which are to be assessed at a later date. In recent times, two other personal injury cases involving diving accidents have been dismissed in single judge trials. However, Borland's solicitor Geoff Home, speaking outside court, said it should be remembered each personal injury case had to be judged on its own facts.
"This does not affect everyone who lives in a canal-side house [but] it sends a message to home owners to take care." he said.
Mr Horne said Borland was very happy at the result as it had been a stressful time and reaffirmed his faith in the jury system. He would not be drawn into the likely damages amount, but agreed some recent awards for tetraplegics had exceeded $2 million.
Borland sued the Makauskases claiming they allegedly knew he was prone to do "silly things" and should have taken steps to ensure he did not dive off the fence.
Borland was left a tetraplegic as a result of injuries he sustained from the dive into the canal at the back of the Makauskases' then house in Yunga Court, at Broadbeach Waters, on March 18, 1999 .