An American boardsailor, who unsuccessfully sought $15 million damages from Olympic gold medallist Bruce Kendall, has lost her latest appeal to have the case reheard.
Once the United States' top female boardsailor, Kimberly Birkenfeld suffered severe brain and spinal injuries when her windsurfer collided with a YachtingNew Zealand-owned motorboat being driven by Kendall in Greece in August 2002. She claims she had stopped in the water when he ploughed into her but Kendall claims she came at him at high speed and he was unable to avoid her.
Kendall, Birkenfeld's former coach, pulled her lifeless body out of the water and resuscitated her, saving her life.
Birkenfeld now needs a wheelchair to walk more than short distances and struggles to speak.
She had initially sought a $15 million in damages from Kendall, brother of champion windsurfer Barbara Kendall, but Yachting NZ and Kendall won orders limiting the amount of funds payable to about $500,000.
Yachting NZ has not admitted liability for the accident but has offered on several occasions to pay Ms Birkenfeld the full amount, which she has declined.
In the Court of Appeal Birkenfeld contended that the offer only dealt with quantum damages and not Kendall's alleged negligence.
She also argued that the High Court had failed to make a discovery of documents order which was a fundamental failure of due process. She asked for the case to be returned to the High Court for such discovery to be ordered.
She also wanted a court order that stayed proceedings disregarded because she had no means to provide $50,000 security.
However, the Court of Appeal, in a reserved judgment released today, threw out all Birkenfeld's grounds for appeal and ordered her to pay the legal costs of Kendall and Yachting NZ.
