| Allianz
Australia Insurance Ltd v Pomfret (NSWCA) - workers
compensation - dust diseases - arguable case insurer liable to indemnify
employer for its liability to worker
|
| White
v Johnston (NSWCA) - assault and battery - dentist’s
treatment was not assault on patient - matter remitted confined to alternative
negligence claim
|
| Wilkinson
v C & M Leussink Pty Ltd (NSWSC) - workers compensation
- judicial review - jurisdictional error - decisions of Medical Appeal Panel
quashed
|
| Smith
v Marshall [No 2] (WASC) - defamation - impugned imputations
struck out
|
| Stewart
v Ackland (ACTCA) - negligence - student injured performing
backward somersault on jumping pillow on farm –
occupiers of farm who conducted amusement park business liable - appeal
dismissed
|
| McFadyen
v Jenson (ACTSC) - motor vehicle accident - liability
admitted - credit - medical evidence - damages assessed
|
| Compass
Group Healthcare Hospitality Service Pty Ltd v Beaton (ACTSC) - workers compensation -
worker’s mental injury caused by employer’s unreasonable conduct - appeal
dismissed
|
| Summaries With Link (Five Minute Read) |
Allianz Australia Insurance
Ltd v Pomfret
[2015] NSWCA 4
Court
of Appeal of New South Wales
Beazley
P; McColl, Basten, Macfarlan & Meagher JJA
Workers
compensation - insurance - employer’s liability for occupational disease -
worker employed by company (Ceeco) in 1974 - worker employed by Ceeco again
from early 1976 until 23/12/78 - worker exposed to asbestos dust and fibre
during periods - up to 31/1/78, contract of insurance between Allianz and Ceeco
indemnified Ceeco against liability as employer during policy period. - Ceeco
deregistered - worker sued Allianz for compensation for asbestosis and related diseases
- Allianz contended relevant disease under
s151AB(1) Workers Compensation Act 1987 (NSW) was asbestosis and that it was not liable
because worker employed by Ceeco until 23/12/78 - when worker ‘last employed’
in conditions to nature of which occupational disease due Allianz claimed it
was not ‘on risk’ - divisible or indivisible harm or injury - held: purpose
of s151AB was to identify insurer liable to indemnify employer liable for
occupational disease of gradual onset contracted over period of employment
involving exposure to relevant harmful conditions - must be established that period
of exposure caused or substantially contributed to harm subject of claim - primary judge correctly concluded there was
arguable case Allianz liable to indemnify Ceeco in respect of claimed liability
to worker - appeal dismissed.
Allianz
Australia Insurance Ltd
[From Benchmark 16 February 2015] |
White v Johnston [2015] NSWCA 18
Court
of Appeal of New South Wales
Barrett,
Emmett & Leeming JJA
Assault
and battery - respondent patient alleged appellant dentist’s treatment
constituted assault and was negligently performed - primary judge found dentist
had committed assault and battery on patient - dentist contended evidence did
not establish absence of therapeutic purpose in treatments she performed, that primary
judge erred in relying on evidence admitted to demonstrate tendency to charge
for services not performed, and in waiving notice requirement - appellant also
contended exemplary damages were excessive - held: evidence did not establish
absence of therapeutic purpose - awarding of damages in error - decision to
admit evidence relating to malpractice overturned - matter remitted to District
Court confined to alternative claim in negligence.
White
[From Benchmark 20 February 2015] |
Wilkinson v C & M Leussink
Pty Ltd
[2015] NSWSC 69
Supreme
Court of New South Wales
Harrison
AsJ
Workers
compensation - judicial review - plaintiff sought to quash decisions of Medical
Appeal Panel to revoke medical assessment certificate and to refuse to
reconsider its earlier decision - held: Appeal Panel did not exceed its
jurisdiction - Appeal Panel did not misconstrue its jurisdiction under s328(2) Workplace Injury Management and Workers
Compensation Act 1998 (NSW) by conducting a de novo review - Appeal Panel
considered impairment to plaintiff’s right leg not due to work-related injury
but rather to underlying arthritic condition - Appeal Panel made findings as to
causation and in doing so purported to exercise statutory function it did not have
- Panel failed to address s323 concerning assessment of permanent impairment amounted
to error - jurisdictional error - plaintiff denied procedural fairness -
decisions quashed.
Wilkinson
[From Benchmark 20 February 2015] |
Smith
v Marshall [No 2]
[2015] WASC 62
Supreme Court of Western Australia
K Martin J
Pleadings - defamation - action arising
out of publication to Australian Shareholders’ Association as well as three
other persons by open letter - defendants challenged natural and ordinary
meaning imputations in plaintiff’s amended statement of claim - popular or
false innuendos - defendants claimed imputations were manifestly groundless or
untenable meanings, and that they were also embarrassing - held: three of four
impugned imputations struck out.
Smith
[From Benchmark 19 February 2015] |
Stewart
v Ackland [2015]
ACTCA 1
Court of Appeal of New South Wales
Penfold J; Walmsley & Robinson AJJ
Negligence - appellants were owner/occupiers
of farm on which they conducted business involving amusement park - respondent
university student injured when performing aerial backward somersault on
jumping pillow owned by owner/occupiers - trial judge found owner/occupiers
liable for respondent’s injuries - held: trial judge correctly decided activity
in which respondent was engaged when injured was a dangerous recreational activity - no error in finding that risk was
not obvious - open to trial judge to
find breach of duty by appellants and that causation established - appeal
dismissed.
Stewart
[From Benchmark 17 February 2015] |
McFadyen
v Jenson
[2015] ACTSC 12
Supreme Court of the Australian Capital
Territory
Burns J
Damages - negligence - plaintiff was
driving motor vehicle which was stationary in traffic when vehicle driven by
first defendant collided with rear of plaintiff’s vehicle - second defendant
was first defendant’s third party insurer - plaintiff injured as result of
collision - extent of injury in dispute - defendants admitted liability -
assessment of damages - medical evidence - credit - held: plaintiff was honest
witness - damages assessed at $104,447.95 - judgment for plaintiff.
McFadyen
[From Benchmark 19 February 2015] |
Compass Group Healthcare
Hospitality Service Pty Ltd v Beaton
[2015] ACTSC 18
Court
of Appeal of the Australian Capital Territory
Burns
J
Workers
compensation - worker sued appellant for mental injury arising out of or in
course of her employment with the appellant - appellant claimed any injury
sustained by worker was result of reasonable action taken by it in relation to
disciplining worker - Magistrate found appellant’s
unreasonable conduct in meeting cause worker’s injury - appellant appealed -
ss4, 31(1) & 197 Workers Compensation
Act 1951 (ACT) - held: no failure to make findings as to content of
discussion at meeting between worker and appellant’s human resources manager -
no failure to make finding as to worker’s emotional state during meeting - no failure
to provide sufficient reasons for concluding worker displayed an adverse reaction
and an emotional response to meeting process - Magistrate entitled to accept
worker’s evidence as to conduct of meetings - Magistrate did not make finding
that there was objective evidence available during meeting that worker was not
a person of normal fortitude - appeal dismissed.
Compass
Group Healthcare Hospitality Service Pty Ltd
[From Benchmark 23 February 2015] |
