Qld: Court of Appeal overturns jury decision in canal case

AAP General News (Australia)
12-22-2000
Qld: Court of Appeal overturns jury decision in canal case

By Lisa Davies

BRISBANE, Dec 22 AAP - A paralysed man who could have received millions in a negligence
claim will now have to pay court costs after Queensland's Court of Appeal today overturned
the original jury finding.

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, leaving him wheelchair-bound.

A four-person Supreme Court jury in July took just two and a half hours to find that
the Makauskases were 70 per cent liable because the design of the fence could have presented
an invitation for someone to climb and dive off it.

They also found the homeowners breached their duty of care by not erecting a sign warning
of the dangers.

But the appeal court today set aside that finding, ruling there was nothing unusual
in the fence and it could not possibly be described as an invitation to do something so
obviously dangerous.

Initial estimates could mean Mr Borland has to pay tens of thousands of dollars for
the Makauskases' costs.

Outside the court, his solicitor Geoff Horne, said he and his client were disappointed
with the decision.

"Obviously it's not the greatest Christmas present in the world but he's a fairly remarkable
young bloke and I'm sure he'll bear up," Mr Horne said.

He said he would examine the judgment carefully before advising his client whether
to take the matter any further.

Counsel for the Makauskases, Rhett Kennedy, said the result was a win for commonsense.

"We're obviously very pleased with the decision and feel that justice has now been
done," he said.

"The net result is that there's no breach of duty of care that was owed by the Makauskases.

"They discharged the duties they owed to Paul as a visitor."

Mr Kennedy said the insurance industry could breathe an enormous sigh of relief after
today's ruling.

"The particular insurer here will be extremely pleased, as will the rest of the industry,"

he said.

"The potential ramifications of this sort of decision are obvious in the first instance
at least, because it would mean the net result is we're all paying more premiums."

Mr Kennedy said the decision also meant homeowners could relax.

"They can be content that there's some commonsense," he said.

"The message that was sent from the jury's verdict was to be nervous."

AAP ld/jhm/mk/bwl

KEYWORD: BORLAND (CARRIED EARLIER) WITH AUDIO

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