Insurance, Banking, Construction & Government: Tuesday, 2 June 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.
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Insurance, Banking, Construction & Government

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Executive Summary (One Minute Read)
Fogg v Kane Constructions (NSW) Pty Ltd; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (No. 5) (NSWSC) - negligence - plaintiff injured while delivering building materials to worksite - subcontractor liable - contributory negligence 15% (I B C)
Carangelo v State of New South Wales (NSWSC) - negligence - psychiatric injury suffered by police officer - State negligent - factual causation not established (I)
Goldsmith by her tutor the New South Wales Trustee and Guardian v Bisset (No 3) (NSWSC) - negligence - developmentally disabled child not wearing helmet struck by motor vehicle while riding pushbike into traffic lane - driver liable - no contributory negligence (I)
Insurance Australia trading as NRMA v Ural (NSWSC) - motor accidents compensation - erroneous refusal to issue certificate of exemption - decision quashed (I G)
Nom De Plume Nominees Pty Ltd v Fingal Developments Pty Ltd (VSCA) - stay - no good reason advanced for granting stay in pending appeal - application dismissed (I B)
Carbon Black Lab Pty Ltd v Launer (VSCA) - real property - caveat - no error in granting of application for removal of caveat - appeal dismissed (B)
Wilson v Coxon [No 2] (WASC) - pleadings - defamation - paragraph of re-amended defence struck out (I)
Summaries With Link (Five Minute Read)
Fogg v Kane Constructions (NSW) Pty Ltd; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (No. 5) [2015] NSWSC 648
Supreme Court of New South Wales
Johnson J
Negligence - limitations - plaintiff injured in fall while delivering building materials to worksite - plaintiff sued head contractor at site (Kane), subcontractor contracted by Kane and employer with whom Hutchison contracted, for damages in negligence - held: plaintiff’s claim not statute-barred - Hutchison breached duty of care to take reasonable care to ensure deliveries made at location and in manner that did not carry unreasonable risk of injury - breach caused plaintiff’s injuries - Hutchison liable - liability not established against Kane or employer - plaintiff failed to take reasonable care for his own safety - contributory negligence assessed at 15% - damages assessed - parties to bring in short minutes of order.
Fogg (I B C)
Carangelo v State of New South Wales [2015] NSWSC 655
Supreme Court of New South Wales
Adamson J
Negligence - psychiatric injury - chronic adjustment disorder - plaintiff sued State for psychiatric injury due to breaches of duty by Commissioner of Police for which State was vicariously liable - plaintiff claimed Commissioner failed to take reasonable precautions against risks of psychiatric injury at two points in his service - Sch 1 cl 2, ss5B, 5D, 5E, 5R, 13, 16 & 42 Civil Liability Act 2002 - held: State negligently failed to refer plaintiff to Police Medical Officer and a private psychiatrist - State negligently failed to forewarn plaintiff of impending Police Integrity Commission inquiry or to support him through inquiry and subsequent action under s 181D Police Act 1990 - factual causation not established - judgment for State.
Carangelo (I)
Goldsmith by her tutor the New South Wales Trustee and Guardian v Bisset (No 3) [2015] NSWSC 634
Supreme Court of New South Wales
Campbell J
Negligence - plaintiff child with development disabilities and not wearing a helmet was riding bike out of parking lane and into traffic lane when she was stuck by defendant’s car - plaintiff suffered head and brain injuries - separate determination of issue of liability - whether plaintiff’s injuries caused by defendant’s negligence - whether plaintiff guilty of contributory negligence - s138 Motor Accidents Compensation Act 1999 - ss5D & 5R Civil Liability Act 2002 - held: risk was foreseeable - defendant failed to keep  proper look-out - had defendant kept proper lookout accident could have been avoided - defendant’s negligence was necessary condition of plaintiff’ injury - no contributory negligence - judgment for plaintiff - damages to be assessed.
Goldsmith (I)
Insurance Australia trading as NRMA v Ural [2015] NSWSC 620
Supreme Court of New South Wales
Young AJA
Motor accidents compensation - plaintiff was insurer of party to motor vehicle accident - first defendant made claim pursuant to Motor Accidents Compensation Act 1999 (NSW) - insurer failed to give notice whether it admitted or denied liability within time under s81 - insurer sought to have claim treated as exempt - Principal Claims Assessor declined to issue certificate on basis that after deemed denial insurer paid money on claimant’s behalf that amounted to admission of liability - held: in Smalley v Motor Accidents Authority of New South Wales [2013] NSWCA 318 Court of Appeal found that, apart from s81(4), the deeming effect of s81 could not be displaced - further, Court of Appeal found that s81(4) was not an empowering section and did not purport to detract from deeming provision in s81 - anything that happened after denial in deemed s81 notice was irrelevant - no course open to Principal Claims Assessor but to issue certificate of exemption - decision quashed.
Insurance (I G)
Nom De Plume Nominees Pty Ltd v Fingal Developments Pty Ltd [2015] VSCA 129
Court of Appeal of Victoria
Mandie & Kyrou JJA
Stay - applicant sought stay of orders pending hearing and determination of proposed appeal - whether arguable grounds of appeal - justice - balance of convenience - held: there appeared to be arguable grounds of appeal - however Court not satisfied that if no stay granted there would be a real risk of appeal being rendered nugatory - successful plaintiff entitled to the fruits of its judgment - no good reason advanced for granting stay - application dismissed.
NomDePlume (I B)
Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126
Court of Appeal of Victoria
Santamaria, Ferguson & McLeish JJA
Real property - caveat - contract - applicant sought to appeal from decision granting application under s90 Transfer of Land Act 1958 (Vic) for removal of caveat - whether trial judge erred in finding contract for sale of land validly terminated following issuing of notice of default and rescission - whether trial judge erred in holding balance of convenience favoured removal of caveat - whether trial judge erred in approach under s90 - held: applicant failed to show primary judge erred either in finding no prima facie case for maintaining  caveat or in finding balance of convenience favoured its removal - appeal dismissed.
Carbon (B)
Wilson v Coxon [No 2] [2015] WASC 197
Supreme Court of Western Australia
K Martin J
Pleadings - defamation - complaint concerning publication and re-publication of matter, arising out of oral statement to journalist by defendant - plaintiff sought to strike out paragraph of defendant’s re-amended defence - whether paragraph could be safely assessed as misconceived and inappropriate invocation of Burstein v Times Newspapers Ltd [2001] 1 WLR 579 - held: defendant’s paragraph plea in re-amended defence struck out as failing to disclose any reasonably arguable defence towards arguable mitigation of defendant’s damages should she be found liable at trial - paragraph struck out.
Wilson (I)