NEGLIGENCE

NEGLIGENCE – THIRD PARTY: My sister was seven months pregnant when she had a car accident. She was injured, but not seriously. Later when the baby was born the baby had injuries. The specialists told her that injuries could have been a result of the accident. Can she claim anything from the insurance?  

There is a precedent similar to the circumstances you mentioned – the Turner case. In that case the child was born with serious cerebral problems when it was proved on balance of probabilities that the child’s injuries were caused while still in the womb. This case took many years to complete but the Court awarded the injured child one million dollars damages against the (the mother) – the insurance even though the mother was negligent and caused the accident. The critical thing is for the medical specialists to confirm that the injuries the child sustained were received directly or indirectly from the motor vehicle accident. In an almost similar case more recently the child was unable to get compensation because the evidence was not convincing enough to show that the injuries were caused by the accident but rather through its birth.  

Misled about auto-garage

WRONG STRATA GARAGE: I recently purchased an apartment but I did not get the garage of the unit I inspected. The garage I got is smaller that the one I was shown before I signed the contract. The agent said that does not really matter because all garages are really storage space not residential space. Is he right?

Not quite. If some estate agent showed you the wrong garage – the smaller garage, you will have a right to claim against him. You probably won’t have a claim against the vendor- the contract of the sale usually has an exclusion clause which says that the vendor will not be responsible for any mis-description or misrepresentation made of the property by any agent assisting you with the inspection of the property (Look under Special Conditions).  But, usually – something which is a standard procedure, your lawyer should have invited you to his/her office, shown you the plan of the strata building and he/she would have shown you which flat and which garage you’d be purchasing. If whoever did your conveyance did not do that you may have a recourse against that person. Your choice would be, in absence of an exclusion clause and your solicitor not showing you the plans, to sue the agent or the lawyer. My view is that it is easier to get money out of the estate agent than a lawyer.

Fees: divorce/access/custody/property settlement

LAWYER’S FEES:  I have a very intense divorce and custody matter going on where my husband is being very difficult. I went to a lawyer and he said if it goes to court it will cost me $13,000 a day. That seems rather a lot of money. Can he charge me so much?

That seems to be well above the normal fee for a lawyer doing procedural divorce/access/custody litigation. But there is ‘freedom of contract’ – you can always obtain the services of another other good, competent divorce lawyer much cheaper than that, say, for some $2,000 to $3,000 per day in court. Property settlement is very important, but a lawyer can negotiate that from his office using precedents for guidance. Experience shows that what usually gives problems is where there is a dispute about access to the children of the family.  Divorce/access/custody litigants would save a great deal of money if they could accept precedents where the circumstances were similar to theirs. In other words, what I very strongly suggest – to save thousands of dollars – is to go to court with ‘consent orders’ – where there will be agreement on property, custody, access before going to court