Vince Campbell and I will be off to the High Court in Canberra on Tuesday 5 March 2013.
On Tuesday 5 March 2013 Patrick Keane who is currently the Chief Justice of the Federal Court of Australia will be sworn in as the 50th ever High Court Judge of Australia.
Vince and my association with Patrick Keane derive from different circumstances. Vince lived near to Pat Keane, a few houses away in the Brisbane suburb of Wilston, as a young man. I attended Queensland University classes with Patrick Keane when we were both studying our law degrees.
Pat Keane and I were admitted as solicitors on the same day on 3 February 1976. After working for a short period as a solicitor he became a Barrister.
He was appointed as a QC in 1998 and appeared regularly in the Court of Appeal. As a solicitor I had two memorable cases with Patrick Keane that went to the Queensland Court of Appeal Paul Minchianski v Swanray 110 and Dennis Cash v Mackay Turf Club. Both appeal cases were heard on the same day. Both appeal cases arose out of the District Court Sittings in Mackay where the cases were heard before Judge Peter White.
The first case involved a claim for damages for Paul Minchianski who had been injured in the course of his employment. Following his work related accident Paul unfortunately was involved in a motor vehicle accident in which he suffered other injuries. The motor vehicle accident claim was settled prior to the hearing of the work accident trial.
During the course of the trial the defense counsel wanted details of the amount of damages that Paul Minchianski had received as a result of the motor vehicle claim. An objection was made that the amount was not relevant to the proceedings. The outcome of the trial was that damages were assessed at $230,000.00 but Judgment was given for the employer on the basis that there was nothing that the trial Judge did not believe that there was anything the employer could have done to prevent the injury.
In the second case involving Dennis Cash he was thrown from fractious young horse as he was riding from the stables at the racetrack early in the morning. As a result of being thrown from the young horse he broke his arm at the elbow. There had been a history of the jockey riding the horse track work and recommending to the trainer that the horse needed further education in a stock saddle before being ridden by a jockey in a pad.
The trial Judge assessed Dennis Cash’s compensation in the order of $70,000.00 and again gave Judgment for the Defendant. The trial Judge was of the view that the trainer who had followed the earlier advice and had the horse ridden in a stock saddle for two weeks could not have done anything else to prevent the horse from bucking and there were known risks associated with riding racehorses.
Pat Keane appeared on the hearing of both appeals. In Paul Minchianski’s case the Judgment in the District Court was set aside and he was awarded Judgment on the basis that the risk of injury could have been avoided if the employer had given instructions.
The ratio of the case was “the greater the risk and easier the precautions the greater is the burden to warn and instruct workers to take positive steps to eliminate unnecessary risks even if those risks are obvious”. There was a cross appeal from the Defendant with respect to the issue of the trial Judge not ordering Paul Minchianski to disclose what he had received as a result of the motor accident claim. The cross appeal was dismissed on the basis that a Plaintiff seeking damages for personal injuries which caused loss of earning capacity must establish his or her earning capacity immediately prior to those injuries. It is by comparison between his or her earning capacity immediately before and subsequent to the injuries that the loss of capacity from the injuries is ordinarily ascertained.
In Dennis Cash’s case the Judgment in the District Court was set aside and he was awarded Judgment on the basis that the trainer prior to asking Dennis Cash to ride the young horse track work on the morning in question had said that the horse would not buck. The representation that the horse would not buck was found to be a warranty that was breached when the horse did buck.
Following the appeals, I was advised by Patrick Keane that an objection had been made to his ever appearing in cases involving employers that were insured with WorkCover Queensland. Whilst Vince did brief Pat Keane on legal matters on a couple of occasions, his stories of Patrick Keane mainly relate to their boyhood days. Vince says that he would sometimes convince Pat to come to the park to play cricket and sometimes Pat would say that he was too busy with his studies. The end result is that Pat has ended up a High Court Judge and Vince’s cricket career could not be said to have reached anywhere near those dizzy heights.
It goes without saying that Patrick Keane, being a Queensland boy, will show them what Queenslanders can do, when he gets to Canberra.
