| Fuller-Lyons v New South Wales (HCA) - negligence - child injured in fall from train operated by State - failure to keep proper look-out - State liable - appeal allowed |
| Naaman v Sleiman (NSWCA) - damages - contract - claim for loss of bargain not addressed - miscarriage of justice - appeal allowed - retrial |
| Wei Fan v South Eastern Sydney Local Health District (No 2) (NSWSC) - medical negligence - contract - claims against Health District for failure to diagnose conditions and perform operation dismissed |
| Charatsis v Bendigo & Adelaide Bank Ltd (SASC) - default judgment - adequate explanation for non-attendance at trial - arguable bona fide defence - appeal allowed - default judgment set aside |
| Summaries With Link (Five Minute Read) |
Fuller-Lyons v New South Wales [2015] HCA 31
High Court of Australia
French CJ; Bell, Gageler, Keane & Nettle JJ
Negligence - child passenger injured in fall from moving train after being trapped by train door - child claimed injuries caused by State's negligence - primary judge found negligence established by failure of station staff for failure to keep proper look-out to observe gap in door where child was located and those parts of his body that protruded before signalling for train to leave station - ultimate conclusion of negligence had rested on inferential fact-finding - State appealed - Court of Appeal allowed appeal - Court of Appeal held there was insufficient evidence to enable affirmative conclusion that substantial part of child's body protruding from doors when train left station and identified alternative hypotheses that did not entail negligence on the part of railway staff - held: Court of Appeal erred in overturning primary judge's ultimate factual finding which was correct notwithstanding other possible explanations could not be excluded - Court or Appeal erred in overturning findings on basis appellant failed to exclude alternative hypothesis not explored in evidence - appeal allowed.
Fuller-Lyons
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Naaman v Sleiman [2015] NSWCA 259
Court of Appeal of New South Wales
Meagher, Ward & Gleeson JJA
Damages - contract - appellant claimed proceeds of sale of unit against first respondent - appellant claimed liquidated sum against second and third respondents under deed or alternatively damages for breach of deed in that amount - primary judge dismissed plaintiff’s claims - in further judgment primary judge ordered that subject to costs orders made in relation to specific matters plaintiff should otherwise pay first respondent’s and second respondent’s costs of proceedings - plaintiff appealed against order dismissing claim against second respondent and third respondent, and costs order made in favour of first respondent and second respondent - no appeal against order dismissing plaintiff’s claims against first respondent - held: Court concluded appeal against costs order in favour of first respondent dismissed with costs - appeal otherwise allowed - error of law because plaintiff’s claim for damages for loss of bargain not addressed resulting in substantial miscarriage of justice - orders dismissing proceedings against second and third respondents set aside - new trial on quantification of damages ordered.
Naaman
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Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235
Supreme Court of New South Wales
Harrison AsJ
Medical negligence - contract - plaintiff claimed against Health District for failure to diagnose Type 2 diabetes, failure to diagnose cholecystitis and failure to carry out cholecystectomy - duty and standard of care - causation - contributory negligence - failure to mitigate - ‘volenti non fit injuria’ - Civil Liability Act 2002 (NSW) - National Health Act 1953 (Cth) - held: plaintiff did not establish defendant breached duty of care or that if it breached its duty or duties of care it caused the plaintiff to suffer any injury or damage - case against defendant in negligence and breach of contract failed - verdict and judgment for Health District.
WeiFan
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Charatsis v Bendigo & Adelaide Bank Ltd [2015] SASC 131
Supreme Court of South Australia
Bampton J
Default judgment - loan - bank alleged defendant defaulted on obligations to repay a loan - bank amended pleadings to plead breach of settlement agreement - enforceability of agreement referred to trial - defendant sought to vacate trial and deposed to be suffering depression and anxiety - District Court refused application - defendant again sought to Court to vacate trial in affidavit - defendant failed to attend trial - default judgment entered - trial judge dismissed defendant’s application to set aside default judgment - held: Court erred in finding defendant had not adequately explained non-attendance trial and erred in finding there was no arguable bona fide defence - appeal allowed - default judgment set aside - matter to proceed to settlement conference and trial at earliest opportunity.
Charatsis
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