American boardsailor Kimberly Birkenfeld has had another setback in her ongoing bid to get $15 million damages from Olympic gold medallist Bruce Kendall.
Birkenfeld today lost her latest appeal to have her case reheard, with the Supreme Court dismissing her application for leave to appeal her case.
She was ordered by Chief Justice Sian Elias and Justices John McGrath and William Wilson to pay $2500 in costs to Kendall and Yachting New Zealand, jointly.
Birkenfeld has now had appeals rejected by New Zealand courts in 2006, 2007, 2008 and 2009.
Once the United States' top female boardsailor, she 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 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 in 2008, Birkenfeld had argued that the offer only dealt with quantum damages, 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.
In December 2008, the Court of Appeal threw out all Birkenfeld's grounds for appeal and ordered her to pay the legal costs to Kendall and Yachting NZ.
Birkenfeld appealed to the Supreme Court.
There, she argued the Court of Appeal had failed to determine issues she raised, failed to give its reasons, and denied her equal access to justice, making no allowance for her disability.
In its judgment, the Supreme Court said it had considered written submissions and "it is not necessary for us to have an oral hearing to determine the application for leave to appeal".
The Supreme Court ruled the Court of Appeal had dismissed the case for two reasons, "either of which would have been sufficient for a proper determination".
Birkenfeld had now seen the Court of Appeal documents she had requested and was unable to point to any argument she was unable to raise in that court, the Supreme Court judgment said.
"Nor are we persuaded that the hearing in the Court of Appeal was unfair to her."
Apparently, the case has yet to cross the finish line.
Birkenfeld recently filed a further application, critical of what she called "inadmissable evidence" in submissions by Kendall and Yachting NZ.
She indicated to the Supreme Court she wished to submit a formal response.
The Supreme Court did not see that application as reason to delay today's judgment.
Kendall won the men's boardsailing gold medal at Seoul in 1988.
