THE RECENT High Court decision to reinstate $3.75 million in damages to a plaintiff, who became a quadraplegic after diving under a wave into a sandbar in November 1997, does not signal tough times ahead for insurers, according to a legal insurance specialist.

Michael Martin at Sparke Helmore said the NSW Civil Liability Act 2002 and related legislation in other States, with an emphasis on personal responsibility, mean similar decisions are unlikely in future. The issue for the High Court was whether there was any evidence upon which the jury could reasonably find that the Council was negligent in placing the flags where it did. The Council failed to convince the jury that the flags should be placed elsewhere to avoid the sandbar, or to explain why nothing would have been gained by putting the flags in a different location. The High Court found that the jury's verdict should not be disturbed.

“There is no doubt that the effect of this decision on insurers and statutory authorities is much less drastic than first thought,” Martin says.

“As a result of the 2002/2003 reforms, defendants in a similar position to that of [Waverley] Council in 1997, will be able to argue that the sandbar was an ‘inherent or obvious risk’ and probably escape liability.”