Birkenfeld damages claim against Kendall fails

Last updated 14:38 21/04/2010
Bruce Kendall
Sunday Star-Times
BRUCE KENDALL: Said Birkenfeld came at him at high speed and he was unable to avoid her.
Kimberly Birkenfeld
PHIL REID/Dominion Post
KIMBERLY BIRKENFELD: Claimed she had stopped in the water when Kendall ploughed into her.

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American boardsailor Kimberly Birkenfeld has lost her nearly eight-year bid to get $15 million damages from Olympic gold medallist Bruce Kendall.

Once the United States' top female boardsailor, Birkenfeld suffered severe brain and spinal injuries in 2002 when her windsurfer collided with a Yachting New Zealand-owned motorboat driven by Kendall in Greece.

She claimed she had stopped in the water when he ploughed into her, but Kendall said 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.

She now needs a wheelchair to go more than short distances and struggles to speak.

She had initially sought $15 million in damages, but Yachting NZ and Kendall won orders limiting the amount of funds payable to about $500,000.

Yachting NZ never admitted liability for the accident but had offered on several occasions to pay Birkenfeld the full amount, which she had declined.

In 2008 the Court of Appeal threw out Birkenfeld's appeal, after she argued that the offer only dealt with quantum damages, not Kendall's alleged negligence.

Last July, the Supreme Court dismissed Birkenfeld's application for leave to appeal her case saying it was "not persuaded that the hearing in the Court of Appeal was unfair to her".

The Supreme Court today dismissed a further application filed by Birkenfeld, who argued that a lack of a right to public access to court records deprived her of the right to a fair and public hearing.

The court said it was not persuaded that the regulations concerning public access had a prejudicial effect on the preparation of Birkenfeld's case.

Birkenfeld has now had appeals rejected by New Zealand courts in 2006, 2007, 2008, 2009 and 2010.

Kendall won the men's boardsailing gold medal at Seoul in 1988.

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- NZPA

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