Weekly Insurance Law Review Tuesday, 7 April 2015 View in browser

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

Weekly Insurance Law Review

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Executive Summary (One Minute Read)
Grills v Leighton Contractors Pty Ltd (NSWCA) - work injury damages - police officer injured when boom gate lowered in error - erroneous finding of contributory negligence - appeal allowed in part
Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd (NSWCA) - negligence - workplace injury - equal apportionment of liability between employer and third party - appeal dismissed
Smythe v Burgman (No 2) (NSWSC) - medical negligence - patient’s leg amputated due to arterial clot - doctor not liable
Kennedy v Shire of Campaspe (VSCA) - negligence - trip on paver - Road Management Act 2004 (Vic) - prospects of success - leave to appeal allowed
AME Hospitals Pty Ltd v Dixon (WASCA) - contract - negligence - extension of time to bring action against doctor and company - appeals dismissed
Summaries With Link (Five Minute Read)
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Court of Appeal of New South Wales
Beazley P; Barrett & Gleeson JJA
Work injury damages - police officer injured in course of duties during security operation when motorcycle collided with boom gate lowered on Eastern Distributer in error by motorway controller employed by first respondent - plaintiff sued first respondent and State as his employer - primary judge found respondents negligent - appellant appealed against finding of liability against State and finding of contributory negligence against him - ss3B, 5B, 5C, & 5R Civil Liability Act 2002 (NSW) - held: primary judge correct to find first respondent breached duty of care by lowering boom gate - State owed breached employer’s duty of care by failing to give clear directions to first respondent as to what was required in closing Eastern Distributor for security operation - apportionment not in error - primary judge erred in finding of contributory negligence - appeal allowed in part.
[From Benchmark 30 March 2015]
Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73
Court of Appeal of New South Wales
Basten & Leeming JJA; Simpson J
Negligence - workplace injury - truck driver employed by appellant - truck driver director of employer - employer owned prime mover driven by worker - respondent contracted with employer to haul trailers - worker claimed that, while loading trailer in Perth he fell and was injured - respondent was held liable to worker on basis worker’s contributory negligence was one third - respondent sued employer for statutory contribution - primary judge apportioned liability equally between respondent and employer - employer submitted injury had not occurred in way respondent and worker contended - employer challenged primary judge’s acceptance of worker as witness of truth - employer also contended corporate structure which permitted respondent to seek contribution after compromising worker’s personal claim against it should result in nil or minimal contribution - primary judge rejected employer’s submissions - submissions in substance repeated on appeal - commercial reality - s151Z Workers Compensation Act 1987 (NSW) - held: no error shown in primary judge’s reasoning - employer’s appeal dismissed.
[From Benchmark 31 March 2015]
Smythe v Burgman (No 2) [2015] NSWSC 298
Supreme Court of New South Wales
Adamson J
Medical negligence - plaintiff claimed damages from doctor for leg amputation - plaintiff claimed doctor negligent in failing to diagnose arterial ischaemia on either of two dates - ss5D(1), 5E, 5O, 15B(2)(c) & 16 Civil Liability Act 2002 (NSW) - s 69(4) Evidence Act 1995 (NSW) - credit - usual practice - held: plaintiff failed to establish breach of duty by doctor - Court satisfied doctor considered arterial ischaemia and reasonably rejected it - even if doctor negligent, Court not satisfied negligence would have caused or contributed to loss of leg - judgment for defendant.
[From Benchmark 27 March 2015]
Kennedy v Shire of Campaspe [2015] VSCA 47
Court of Appeal of Victoria
Whelan & Ferguson JJA
Negligence - applicant tripped on paver while walking along street - applicant sued respondent - trial judge found applicant may have had arguable case but Road Management Act 2004 (Vic)  prevented her from succeeding - applicant sought leave to appeal - prospects of success - s14A Supreme Court Act 1986 (Vic) - held:  trial judge referred to no applicable Victorian authorities on relevant statutory provisions - trial judge repeatedly referred to drafting problems, lack of clarity and difficulty in construing provisions - trial judge applied New South Wales Court of Appeal decision which applicant argued inapplicable - case raised difficult issues of application of Jones v Dunkel and actual knowledge - held: applicant should be given opportunity to obtain appellate determination of issues -  prospect of success was real in sense it was not fanciful - applicant granted leave to appeal.
[From Benchmark 26 March 2015]
AME Hospitals Pty Ltd -v- Dixon [2015] WASCA 63
Court of Appeal of Western Australia
McLure P; Buss & Newnes JJA
Negligence - contract - limitations - Master granted respondent extension of time under s36 Limitation Act 2005 (WA) to commence action against doctor and company for breach of contract or negligence in connection with respondent’s birth - proper construction of s39 and its application to facts and circumstances - injury - physical cause - aware - ought reasonably to have become aware - attributable to - held: at time limitation period expired, respondent’s father not aware of physical cause of respondent’s encephalopathy or cerebral palsy and not aware either injury attributable to conduct of a person - Court’s power to extend time enlivened - Master granted extension of time by order within 3 year period in s39(4) - Master had power to make order within proper exercise of discretion - appeals dismissed.
[From Benchmark 31 March 2015]
Now Sleeps the Crimson Petal
 by Alfred, Lord Tennyson
NOW sleeps the crimson petal, now the white; 
Nor waves the cypress in the palace walk;        
Nor winks the gold fin in the porphyry font:       
The fire-fly wakens: waken thou with me.          
Now droops the milkwhite peacock like a ghost,
And like a ghost she glimmers on to me.
Now lies the Earth all Danaë to the stars,          
And all thy heart lies open unto me.       
Now slides the silent meteor on, and leaves     
A shining furrow, as thy thoughts in me.                  
Alfred, Lord Tennyson