A PARALYSED Gold Coast man awarded up to $2 million after he dived off a fence into a shallow canal lost his wind fall yesterday in Queensland's Court of Appeal.
Paul Michael Borland, 28, successfully sued Pamela and Alex Makauskas this year after he dived from their back fence into a Gold Coast canal in March 1995, breaking his neck and becoming wheelchair-bound.
The Court of Appeal, in a unanimous judgment described as "incomprehensible" a jury's decision to find the couple liable. The decision has also resulted in Borland being slugged with court costs.
The Supreme Court trial had originally left Mr and Mrs Makauskas and their insurers with a $2 million bill. The jury had taken two hours to find the couple, who were in New Zealand at the time of the accident, were 70% responsible for injuries sustained by Borland.
Borland, now a tetraplegic, dived into the canal while he was a guest at the couple's Broadbeach Waters canal side house in March 1995. Borland had been a friend of the couple's son and was found 30% responsible for his injuries.
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, of the dangers of diving into the canal.
The jury found the couple had 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 Court of Appeal ruled it would be unreasonable to expect a householder to take steps to avoid all possible forms of "outrageous behaviour". It said the risk existed only because someone had ignored the obvious and Borland's behaviour was "foolhardy in the extreme".
Outside court, solicitor Rhett Kennedy, for the Makauskases, said his clients had been confident the Court of Appeal would set aside the jury verdicts.
"It was clear from the public outcry after the case the jury verdicts did not reflect the thoughts of the community," he said.
Solicitor Geoff Home, for Borland, said it obviously wasn't the Christmas present his client had hoped for. He said he would be examining the appeal judgment carefully before deciding if the matter should go to the High Court.
"But any High Court hearing really wouldn't be about my client's accident — which is my first concern — but rather about the integrity of the jury system," he said.
Queensland Insurance Council of Australia manager Graham Jones said insurers were relieved the case had been overturned.
"The initial jury decision was of great concern to the insurance industry," Mr Jones said.
The Queensland Law Society said the decision made it clear there was now a line drawn between a property owner's duty of care and a person's responsibility for their own actions.
Plaintiff Lawyers Association vice-president David Wilson said the decision made it clear "common sense" should prevail when assessing duty of care.