And so it begins...

[Sean]

Classmate sues schoolgirl, 13, over tennis court mishap at private school

A 13-YEAR-OLD schoolgirl is being sued by a classmate over a tennis court mishap at one of Queensland's top private schools in the latest blow to playground fun.

The legal claim, over a bruised eye, has raised concerns that "litigation-crazy'' parents could threaten the future of school sport by forcing up insurance costs.

It may also force parents to take out third-party accident insurance for their children.

Several Queensland schools have already banned activities including tiggy, red rover and cartwheels because of injury fears.

The legal stoush has embroiled the daughters of a leading Gold Coast cardiologist and an architect, and the prestigious Somerset College.

Cardiologist Guy Wright-Smith said he was "gobsmacked'' to receive the damages claim, addressed to his 13-year-old daughter Julia, at his rooms on Friday.

The claim alleges Julia had hit classmate Finley Enright-Burns in the eye with a tennis ball during a tennis lesson at the Mudgeeraba school last October. It alleges Julia was "smashing'' balls back to Finley on the baseline when the incident happened.

Finley did not go to hospital but is alleged to have suffered an eye injury which needed medical treatment.

The claim, filed on behalf of Finley by her architect father Paul Burns, also names Somerset College and its Jay Deacon's Tennis School as defendants.

"It's bizarre ... beyond belief,'' Dr Wright-Smith told The Courier-Mail yesterday.

The claim says the tennis school failed to provide adequate supervision or protective eyewear and allowed Julia and Finley to stand too close together and Julia to hit two balls at once.

Somerset College also breached its duty of care, the claim alleges.

Damages have not been specified but the Wright-Smiths are required to respond within 30 days.

"I couldn't believe it when I opened this legal letter addressed to my 13-year-old daughter,'' Dr Wright-Smith said yesterday

Dr Wright-Smith said Julia and Finley were friends and the claim had come "out of the blue''.

"I called my lawyer immediately,'' he said.

Lawyer Bill Potts, who is not acting for the Wright-Smiths, said such lawsuits threatened the future of school sport by forcing up insurance costs.

"While the girl's injuries are regrettable, there is also a sense with claims like this that we've gone too far and are becoming a litigious-crazy society like the US,'' he said.

"We can't wrap our kids in cotton wool. Are they going to start stopping kids from climbing trees and kicking balls?

"These great Australian pastimes are under threat if claims like this are successful.''

Mr Potts said the High Court had recently acted to wind back "foolish claims''.

"The High Court has said that people have to take greater responsibility for their own actions,'' he said. "There has been a culture of blame rather than common acceptance that people just have to be careful.''

http://www.heraldsun.com.au/news/more-n ... 6335841707

Let's hope that this kind of shit is nipped in the bud and not given a chance to take hold.

[Gob]

Protective eyeware to play tennis? Fuck that, why not be extra sure and wrap the fuckers up like American footballers!

[Sue U]

Another bout of hyperventilating lawyer-bashing long on outrage and short on facts -- and completely devoid of any attempt at explication or illumination of the issues. Let me say that while this may not have been a case I would have taken, it is certainly hard to tell: the article here is bereft of any facts concerning the inujury (what was it? Is there permanent impairment? Was there a later-discovered retinal detachment that required surgery? Is there a traumatically induced opacification/cataract? Will the injury result in progressive degeneration of sight? What?) and not only avoids but actively misleads readers concerning the legal issues.

Frst, there's nothing like starting off with some fact-free fear-mongering:

A 13-YEAR-OLD schoolgirl is being sued by a classmate over a tennis court mishap at one of Queensland's top private schools in the latest blow to playground fun.

The legal claim, over a bruised eye, has raised concerns that "litigation-crazy'' parents could threaten the future of school sport by forcing up insurance costs.

It may also force parents to take out third-party accident insurance for their children.

All complete bullshit. One personal injury lawsuit is not a "blow to playground fun." Seeking fair compensation for what might be (we are never told) a life-altering permanent injury hardly makes someone "litigation crazy," nor does it threaten sports or drive up insurance costs. Most institutions purchase liability insurance exactly so that there will be coverage available for accidents like this; that's the whole purpose of having insurance in the first place. As for the parents, their homeowners policies (and, because these are well-to-do professionals, their umbrella liability policies) would already cover their kids' negligence (if any); there is absolutely no need to take out additional third-party accident insurance. And by the way, the truth of civil litigation is that those who are uninsured are not likely to be sued in the first place. People buy insurance because they have assets to protect; if there is no insuance and no substantial personal assets to attach, there is simply no point in seeking compensation.

Which brings us to the question of negligence: The actual target of this lawsuit is obviously not the girl, but the school and its personnel who were supervising the activity. (The girl has to be named as a defendant only because she actually hit the ball.) If the players were being instructed in a manner likely to cause serious injury, particularly when other training options were available, why shouldn't the school and its employees be held accountable for their role in causing the injury? Why should they get a pass if they were directing the girls to do something unreasonably dangerous?

And why the fuck is this article quoting Bill Potts, who is a criminal lawyer, not a civil litigator? His quote is both inflammatory and nonsensical:

"The High Court has said that people have to take greater responsibility for their own actions,'' he said. "There has been a culture of blame rather than common acceptance that people just have to be careful.''

Why shouldn't the school and its instructors have to take responsibility for their actions as well? Shouldn't the school and its instructors directing the activities of young kids have a rsponsibility to take some care for their safety? Shouldn't they know better than the 13-year-olds in their charge? Have they no obligation to act sensibly in planning training programs for the kids? The "culture of blame" here is apparently centered on blaming the victim.

Gah.

[Big RR]

And of course, the mere filing of a lawsuit is not proof any negligience occurred at all. If there was negligince in the instruction and/or safety precautions, then, as Sue said, why shouldn't the school and the instructors be held liable for their negligience? If not, it is quite unlikely they will be held liable. As Sue said, we don't know the extent of the injuries and/or what the extent of the negligience is, but don't parents have the right to rely upon the "experts" to act appropriately, and/or to insist that their charges take appropriate safety precautions? If a high school coach didn't insist that a football player wear appropriate proptective equipment or that a baseball player wear a batting helemet, shouldn't the coach and the institutition be held liable for injuries incurred on account of the neglgieince? Likewise, in a supervised activity like this, why should the school and coach get a break if ordinary safety rules were not followed? It's not like two kids were playing on their own, this was some sort of a school or other school sanctioned activity; at the very least it bears looking at.

[Crackpot]

Sue you seem to be missing you seem to be missing the "zero tolerance" mindset that infests school policy makers. Poor bugeting underfunding decades of ensuring that their elections are insulated as much as possible from the general public has resulted in school administrations are almost completely inept at doing thier job and unable and wunwilling to change it.

back when I was in highscool I was aware of two situations in which could have resulted in a lawsiut.

The first had to do with a car that was stolen in the schools parking lot after hours. the whole administration lined up to almost literally kiss the kids ass.

The second was me I broke a finger as a reult of trying to fix a malfunctioning bit of gym equipment. In hindsight I could have got a heafty settlement but I had and still do see it as having happened as a result of my own stupitiy. Initially I didn't think I got any special traetment untill I saw a student getting harrased for taking an tylenol. (I had quite openly been popping codine until I had healed)

In Short I think you're missing the zero tolerance aspect.

[Sue U]

Crackpot, I am missing your point. What kind of "zero tolerance mindset" are you talking about, what does it have to do with this (or any other) personal inujry suit, and what is the bad result of same?

[dgs49]

If someone with knowledge of Australian tort law could enlighten me...

If a country with (more or less) socialized medicine, what is the point of this lawsuit? What are the (financial) damages? In the U.S., if the suit claimed an INTENTIONAL tort, then punitive damages might be recoverable, but for negligence alone, not so much. What are the plaintiff's damages?

And what is the point of suing a kid? No assets - "judgment proof." Also, if the kid has no prior history of negligently or maliciously hurting people, the parents are not negligent for letting her play.

Inferring from what is NOT in this article, the girl could not have sustained any serious injury. The incident occurred in October and the lawsuit was apparently filed in April. If she had been badly injured (disfigured or vision damaged) it would be common knowledge at the school.

It would be possible for a tennis coach to organize a practice drill in such a way that it was unreasonably dangerous, but there is absolutely no way to avoid occasionally being hit by a tennis BALL, especially in a group lesson. In fact, there are times in tennis when it is common strategy to hit a ball directly at a player at the net. If two kids were lined up next to each other in a position to hit one another with their racquets, that would be negligent on the part of the coach. I just don't see that here.

From every indication, this is truly an outrageous lawsuit. Vindictive harrassment on the part of an over-protective parent, I suspect.

[rubato]

American tort lawyers are like cane toads.

Remember it.

yrs,
rubato

[Jarlaxle]

Protective eyeware to play tennis? Fuck that, why not be extra sure and wrap the fuckers up like American footballers!

I recall even when I was in high school (which is depressingly far in the past), the tennis players wore eye protection.

[Jarlaxle]

Crackpot, I am missing your point. What kind of "zero tolerance mindset" are you talking about, what does it have to do with this (or any other) personal inujry suit, and what is the bad result of same?

Probably the "swat flies with a sledgehammer" approach...the typical crazy overreaction of school administrators.

[Lord Jim]

As Sue once so patiently explained to us slow-witted thickies, there is no such thing as a frivolous lawsuit. It's a myth, no attorney would ever bring such a thing. All lawsuits are fully meritorious.

Also, no lawyer would ever think of bringing a lawsuit against a company or government agency in the anticipation that they would settle out of court even if the case were weak because it was cheaper to do so. Doesn't happen. No company would ever do such a thing, and no lawyer would ever think one would. The only reason that we think these kinds of thing happen is because our ignorance is being exploited by a lying media. When companies settle out of court it is only because they know they would lose, because as I pointed out earlier all lawsuits are meritorious.

Civil litigators in general and personal injury lawyers in particular are The Noblest Of God's Creatures. Everyday and in every way they make our society a better place. Salute them as they pass.

[Joe Guy]

I agree with Jim.

For example all of those lawyers that advertise that they want you to call them if you had an ACME hip replacement are very concerned about your health.

[Lord Jim]

They do the Lord's work, Joe.

If there's one word that best describes the personal injury lawyer, that word would be "compassion".

[Joe Guy]

God bless 'em!

There's just not enough of them around.

[Lord Jim]

What's need is a Lawyers Without Borders program....

Where US personal injury lawyers go to countries to train their less experienced colleagues, (say the UK or Australia, for example) in the fine arts of personal injury lawsuits....

So that these countries may also enjoy the many blessing that have been brought by these noble souls to our society.

[Joe Guy]

Excellent idea, Jim.

Those lawyers without borders could call themselves Personal Injury Lawyers Empowering Society - or PILES.

[Sue U]

Hardy har har. I'm at my state AAJ chapter convention right now, and we were just discussing the next programs forTrial Lawyers Care. We represented more than 1700 victims of 9/11 before Ken Feinberg (who BTW is speaking here today) and the 9/11 Victims Compensation Fund, for free. (These were not easy cases and required tremendous amounts of work. The value of legal services provided is estimated at more than $200,000,000.) We raised hundreds of thousands of dollars for Hurricane Katrina relief. Not to mention the consumer protection and victim's rights work we do every day through our organization.

Exactly what pro bono publico work are you doing?

[dales]

Excellent idea, Jim.

Those lawyers without borders could call themselves Personal Injury Lawyers Empowering Society - or PILES.

[Long Run]

Just another success story of American exports.

But Sue does have a point -- why trust this news story being evenhanded when we know you can't really take at face value anything you read, without analyzing what make sense and what doesn't, and without acknowledging that the writer/editor/publisher is trying to sell a story here and so exaggeration or pushing one angle is a common strategy to maximize interest.

The claim says the tennis school failed to provide adequate supervision or protective eyewear and allowed Julia and Finley to stand too close together and Julia to hit two balls at once.

When you engage in a sporting event, you assume the common risks of that activity. The question in this case is whether the allegations rise to negligence which created an uncommon risk (unless there was an effective sporting event waiver in place, like there would be in most activities in the U.S., in which case they would be looking at a gross negligence standard).

Where Sue and I usually disagree is on the extent of the application of the concept of assumption of risk. I think I am more in the mainstream than Sue in determining what is a common risk, but law is made at the margins by juries that can be persuaded in particular cases, which then forces everyone to become over-cautious for fear of being sued. For example, based on the limited reporting in this case the allegation that there should be protective eyewear for tennis is absurd on its face. The article said the injured girl was standing on the base line taking "smashes", which again is a very common situation in tennis. Two balls at one time may be an issue, but again in a tennis lesson setting, having multiple balls going at once on a court is fairly common.

Unfortunately, this lawsuit reminds us of the many other lawsuits that have forced previously common activities to become obsolete (e.g., notice the disappearing diving boards at swimming pools across America, the end of the playground jungle gym, etc.).

[Guinevere]

Where are you playing, Long Run? My nephews and I play on jungle gyms all the time. They are generally better constructed than the ones you and I played on as kids, and I definitely prefer taking them to ones with those set on bouncy rubber. But the demise of the playgroundshingle gym is way overstated.

So is litigation regarding playgrounds To the extent many are maintained by municipalities, don't overlook the fact that as sovereigns, they are most likely either immune, or their tort liability is limited.

Finally, you're all overstating the litigisness (i cant even spell it) of American parents. I had my boys at a local swing set over Easter. The younger fell out of the swing and slammed his face on the ground, was shaken and bruised. There was no talk, not even a comment about litigation, despite the immediate availability of free legal services. Nor did I suggest otherwise.