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.

LIABILITY IN SMALL BUSINESS

I have a small business – a travel agency. I’m not so sure about how liable I am in relation to my business. Any assistance?

People like you who have a small business – travel agency, real estate agency, accounting business even the corner shop proprietor would usually be classified as a ‘sole trader.’ Sole traders are ‘absolutely’ legally liable. This means if someone sues, you could lose all your assets. Theoretically, a sole business owner has what is called a ‘legal entity’. This means you can sue and be sued in your name. If someone is in your office or shop and slips and claims it was your negligence for not keeping the premises clean, they can sue you for unspecified damages. Of course, normally, business owners take out appropriate insurance policies. 

PROFESSIONAL NEGLIGENCE

I’m a thirty five year old female. Some three months ago I was concerned about my left breast and I went to a (medical) doctor, who after examining me gave me a pain-killing prescription. Recently I felt strongly that I should see a second doctor about my condition. This second doctor said that I could have breast cancer and referred me immediately to a specialist for in-depth testing saying that I’d be in a much better position healthwise if I had gone to see him earlier. He was right. I have now been diagnosed with breast cancer. I am very upset and hurt about the delay. Do I have a case against the first doctor?

Of course, doctors have a professional ‘legal’ and ‘tortious’ duty of care to their patients. It would be a very serious breach for a doctor not to have diagnosed you properly, especially if you mentioned to the doctor that you felt something was wrong with your breast. If you take the doctor to court for negligence, basically – simplistically put – you have to prove the doctor had a duty of care to you, that there was a breach of that duty, that ‘injury’ was done and that the ‘injury’ was foreseeable. Because the matter is very serious and would need an in depth investigation, I strongly recommend you see a your lawyer immediately.