Hot Air Balloon Story

TPD benefits in personal injury claims in Victoria

Last year our personal injury lawyers took on a new client who came to our office in a state of despair, after being told by her former personal injury lawyers, a large law firm in Melbourne that she did not have a claim for her serious injuries suffered in a hot air balloon incident.

The story went as follows:

She participated in a hot air balloon trip

  • The hot air balloon trip concluded by the hot air balloon landing on the back of a trailer attached to a vehicle
  • She was asked to leave the hot air balloon by walking onto the trailer and then off the trailer onto the ground.
  • As she stepped down to the ground, in the early morning light, her foot went into a hole she could not see because of the minimal light
  • She suffered very serious injuries to her right lower leg

Our new client had consulted with a large law firm in Melbourne more than three years before and her claim was given to their public liability team. They waited until the last minute to commence proceedings against the hot air balloon company on the basis that the method of disembarking from the trailer was dangerous.

Lawyers responded on behalf of the hot air balloon company by advising that their claim was out of time, since it was covered not by the Public Liability Law, but by the Civil Aviation Law, as it involved the disembarking of a passenger from a flight.

As such, the period to commence legal proceedings for compensation of any type had to be commenced within one year of the accident.

At that point, the large Melbourne personal injury law firm advised the client that they could not proceed with the claim and suggested that she contact another lawyer, which was likely to provide an avenue for a claim to be made against them for negligence.

It was at that point that this new client saw our Henry Carus to discuss the claim.

On review, Henry advised that a claim against the large personal injury law firm most likely would succeed, but would be limited to what she could have obtained under the Civil Aviation Law in compensation which unfortunately is a very limited claim in compensation.

What immediately sprung to Henry’s attention was that the accident involved “the use of a motor vehicle” in that the accident occurred when she was stepping down from the trailer.

An understanding of the Transport Accident Act deals with accidents involving either the driving or the use of a motor vehicle.

The trailer was a registered vehicle and the accident did involve its use. As such, the Hot Air Balloon Company could be sued, under the Transport Accident Act for the liability arising from the use of a vehicle.

What was seen as a disaster may, in the end, provide the client with great benefit.

Benefit will flow from realisation that a claim could be pursued under the Transport Accident Act which will provide her with extensive compensation, rather than the very limited compensation available under the Civil Aviation Act.

This hot air balloon story is one that we commonly see with personal injury claims being managed by large personal injury firms which slide claims into departments which have little or no knowledge of other areas of the law. The legal practitioners in those areas of the law need to use lateral creative thinking to see opportunities that may be available if one looked at the law in its entirety.

Our client’s claim is yet to conclude, but we are hopeful that she will receive the compensation that she deserves.