Woman Wins $456,000 Payout In Pub Fall.

Courtesy Sydney Morning Hearld - Heath Aston 18th September, 2013

A woman who stepped into a partially-covered drain in a pub car park, fracturing two toes, has been awarded nearly half a million dollars by a court.

The case has caused alarm in the hotels industry over the rising cost of insuring against injury to patrons.

Helen Wurth, 52, sprained her right ankle and bruised both knees after falling less than 15 centimetres into an open grate on the driveway of the Knickerbocker Hotel in Bathurst.

style="margin: 0px; padding: 0px; border: 0px; font-size: 12px; font-family: Arial, Helvetica, sans-serif; vertical-align: baseline; color: rgb(0, 0, 0); line-height: 17px;">Ms Wurth, who lives on 25-acre property south of Penrith, was visiting Bathurst for a horse racing carnival and was talking with a friend when she stepped into the drain in February 2011.

The hotel had not marked the missing slats in the grate as a potential hazard.

Ms Wurth was assessed at Bathurst Base Hospital and had her foot put in a plaster. A month later, X-rays showed fractures at the base of her fourth metatarsal bone and a proximal fracture of the fifth toe, the District Court of NSW heard.

Ms Wurth, an administrative worker at Nepean Hospital, sued the Knickerbocker, claiming ongoing pain and citing the opinion of a consultant surgeon, Dr Peter Conrad, that she had lost 25 per cent use of her right foot.

The court heard evidence she could experience arthritis in both knees in the future as a result of the fall and that her activities in the gym and at work had been curtailed by the foot injury.

In awarding her a total $456,000, District Court Judge Leonard Levy dismissed surveillance footage submitted by the Knickerbocker's insurers that showed Ms Wurth playing a game of backyard cricket with her family a day before the hearing on August 28.

Judge Levy said: "The plaintiff experiences ongoing pain, discomfort and restriction of movement in her right foot in the region of the fractures. She is never free of that pain. This causes her difficulties with prolonged walking and restricts her ability to use stairs ... she also experiences difficulty when driving long distances and with some social activities including standing and dancing.

"The plaintiff has difficulty negotiating stairs because of her knee problems. She restricts her use of the treadmill to walking and no longer jogs."

The verdict included $130,000 for future economic loss and $75,000 for non-economic loss.

Ms Wurth, who keeps horses with her husband Ian at their property and has had to restrict manual work at home, was awarded a further $169,000 to pay for future domestic assistance.

At the time of the injury, the Knickerbocker owner Scott McCallister had told the Wurths that the grate needed replacing. It was ordered two days later, before Ms Wurth made her injury claim.

Judge Levy said: "In the interim, additional steps were required to protect pedestrians using the driveway from harm. Such steps could have been in the form of warning signs, barricades or a simple covering comprising a sheet of timber or metal, as is commonly seen as a temporary measure to cover holes due to roadwork or footpath construction work."

Asked about the level of the pay out, Mr McCallister told Fairfax Media: "I couldn't believe it."

Paul Nicolaou, chief executive of the Australian Hotels Association, said the cost of insuring for public liability was a rising concern for pub owners. "Any large payment will have an impact on insurance premiums and this should be a concern for all businesses," he said.

The Insurance Council of Australia, established to represent the interests of insurers, said it would not comment.


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