A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Insurance Law Review

Friday, 6 February 2015

Executive Summary (One Minute Read)
Kuzet v The Registrar of the Workers Compensation Commission (NSWSC) - workers compensation - assessment of permanent impairment - abnormal illness behaviour - appeal dismissed
Zheng v Wallace (NSWSC) - motor vehicle collision - injured driver failed to give way - driver of oncoming prime mover failed to sound horn - driver of prime mover liable - contributory negligence 80%
Winters v Bishop (QSC) - damages- pedestrian struck by motor vehicle - brain injury causing personality change - damages assessed at $1,335,870.26
Zabic v Alcan Gove Pty Ltd (NTSC) - negligence - mesothelioma caused by exposure to asbestos - employer negligent - claim statute-barred
Summaries With Link (Five Minute Read)
Kuzet v The Registrar of the Workers Compensation Commission [2015] NSWSC 4
McCallum J
Workers compensation - plaintiff injured during course of employment - plaintiff sought to appeal against approved medical specialist’s assessment of 5% permanent impairment - plaintiff contended finding of abnormal illness behaviour precluded conclusion injuries were permanent and stabilised - plaintiff contended that, unless injuries permanent and stabilised, there was no power to make assessment of permanent impairment - s65 Workers Compensation Act 1987 (NSW) - ss121(4) & 327 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - r59.10(2) Uniform Civil Procedure Rules 2005 (NSW) - held: question whether abnormal illness behaviour was required to be considered in assessing permanent impairment was within realm of assessor’s clinical judgment - whether degree of permanent impairment was fully ascertainable was matter of clinical judgment not legal analysis - no error of law or jurisdictional error - proceedings dismissed.
[From Benchmark 3 February 2015]
Zheng v Wallace [2015] NSWSC 3
Supreme Court of New South Wales
Price J
Negligence - motor vehicle accident - contributory negligence - plaintiff driver injured in collision at intersection with prime mover driven by defendant - plaintiff obliged to give way to prime mover - plaintiff claimed driver of prime mover negligent in failing to moderate operation of prime mover after motor vehicle moved into intersection - ss5B, 5C, 5K Civil Liability Act 2002 (WA) - Motor Vehicle (Third Party Insurance) Act 1943 (WA) - held: defendant breached duty of care to plaintiff by failing to sound prime mover’s horn to alert plaintiff to his oncoming vehicle - reasonable driver in plaintiff’s position would not have proceeded onto highway and would have remained at give way line - plaintiff grossly negligent by proceeding onto highway - plaintiff’s very high degree of departure from standard of care prime reason for collision - contributory negligence 80% - judgment for plaintiff.
[From Benchmark 2 February 2015]
Winters v Bishop [2014] QSC 312
Supreme Court of Queensland
Philippides J
Damages - negligence - pedestrian suffered head and elbow injury when struck by motor vehicle while walking across pedestrian crossing - liability admitted - dispute concerning extent of psychiatric injury and quantum of damages - ss11, 59, 60(3) & 61Civil Liability Act 2003 (Qld) - held: Court satisfied plaintiff suffered from personality change due to brain injury from accident - plaintiff suffered severe symptoms and impacts from brain injury - judgment for plaintiff in sum of $1,335,870.26.
[From Benchmark 3 February 2015]
Zabic v Alcan Gove Pty Ltd [2015] NTSC 1
Supreme Court of the Northern Territory
Barr J
Negligence - limitations - plaintiff dying of mesothelioma recently acquired after long latency period - plaintiff claimed damages for employer’s negligence - ss44, 44(2) & 44(7)(a) Limitation Act 1981 (NT) - ss3(1), 52, 189 & 189(1) Workers Rehabilitation and Compensation Act 1986 (NT) (WRCA) - employer contended plaintiff’s action was barred by s52 WRCA and not preserved by 189(1) WRCA because cause of action did not arise before 1 January 1987, the commencement date of s189 - held: Court satisfied plaintiff’s mesothelioma caused by unprotected exposure to asbestos dust and fibres during time he worked for employer - Court satisfied plaintiff’s mesothelioma caused by negligence of employer - however, damage not sustained until onset of mesothelioma - plaintiff had not suffered damage prior to 1 January 1987 - cause of action in negligence for contracting malignant mesothelioma did not arise before that date - plaintiff’s claim for damages against employer after malignant mesothelioma developed was statute-barred and could not succeed.
[From Benchmark 2 February 2015]

Willow Poem
by William Carlos Williams

It is a willow when summer is over,
a willow by the river
from which no leaf has fallen nor
bitten by the sun
turned orange or crimson.
The leaves cling and grow paler,
swing and grow paler
over the swirling waters of the river
as if loath to let go,
they are so cool, so drunk with
the swirl of the wind and of the river-
oblivious to winter,
the last to let go and fall
into the water and on the ground.

William Carlos Williams