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The Difference Between AU and America when it comes to Injury Lawsuits-The McDonalds Case

 Issue on hand: Jessica Wishart, a resident of Adelaide is suing a local McDonald’s franchise for being scalded by coffee purchased at the outlet – a la Stella Liebeck of America. The episode has led to media outrage, calls for law reforms, inevitable comparisons with Liebeck’s case and commentaries ridiculing the frivolous accusations of the plaintiff.



The case of Stella Liebeck: An urban legend connected with tort law, Stella Liebeck of USA was awarded US$2.9 million 20 years ago– for burns received from coffee purchased from McDonalds.

The case has ever since been a rallying point for critics; for negligence regimes in Australia and other places of the world.



Though the decision imparted to Liebeck has been frequently misunderstood, there are many reasons why we should not panic and expect the Australian court to be influenced in any way by the past verdicts of its counterparts in America. Read on for some valuable insights into the difference between AU and America when it comes to injury lawsuits.

#1 Decision makers on negligence claims

In USA, a jury is responsible for hearing the negligence claims. Usually these claims are addressed by a jury of peers constituted of everyday people or laymen. In contrast, a judge decides upon the negligence claims in Australia.

#2 Damages awarded to the plaintiff

Negligence cases in USA attract can attract an award which combines punitive damages directed to punish the defendant along with an added figure to compensate the plaintiff for his/her injuries and sufferings. The jury usually takes exception to the fact that multiple complaints may have been registered by other consumers against the defendant and may thus refuse to react at the first instance.

However, if the defendant declines to go in for an out of court settlement for damages incurred by the plaintiff and drags the issue into litigation, then the case is handled in a very different way. The payout awarded by the jury in some cases can be undeniably large and many times more than the figures sought by the plaintiff—this may be attributed to the nature in which the defendant runs its business or approaches the litigation.

On the other hand, punitive damages are not levied by Australian courts in the event of negligence claims.

#3 Settlements before appeal

In USA the trial judge can reduce the damages awarded by the jury and parties involved can come to a settlement; even before an appeal against the decision is heard. The settlement figures are kept confidential and are generally much more than the figures sought by the plaintiff for medical expenses or other damages incurred. In contrast, Australian courts work in a manner different from those in the USA.

Approaching Jessica Wishart’s case

The claim made by Liebeck has been followed up by several other similar cases in USA and other jurisdictions around the world and have met with varying results. To cite an example– in the case of Bogle and Ors v McDonald’s Restaurants Limited, the High Court of UK had considered the claims brought forth by 36 plaintiffs—most of whom were children. These plaintiffs had suffered injury caused by the spilling of hot beverages served in house by a restaurant of McDonald’s -as against Liebeck’s claim which was a result of injury in a drive-through.

As per the court , McDonald’s was not held liable on the grounds that "Persons generally expect tea or coffee purchased to be consumed on the premises to be hot… persons generally know that if a hot drink is spilled on someone, a serious scalding injury can result". Similar verdicts have been passed in other cases connected with other jurisdictions; including those in the USA.

The current scenario

As far as Jessica Wishart’s case is concerned, the Australian Court has yet to establish the facts connected with the claim. The legal processes are not being assisted in any way by the constant clamors for tort reforms and extensive media discussions. "It remains to be seen whether her claim will be declined or upheld by the court", says David Marocchi from Paramount lawyers.

In recent times, Australian tort laws have gone through several reforms to address the increasing growth of litigations in the country. They are well equipped to balance the interests of defendants and plaintiffs alike. So instead of pressing the panic button prematurely and indulging in attention grabbing headlines and beliefs based on independent research; we should wait for the judicial system to take its normal course of action and provide us with their much awaited response or verdict.

John:
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