Daily Insurance: Thursday, 7 May 2015 View in browser

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

Daily Insurance

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Executive Summary (One Minute Read)
Cupac v Cannone (NSWCA) - motor accidents compensation - assessment of damages for past and future economic loss - appeal dismissed
Hughes v Alcantara (NSWSC) - costs - economic loss - plaintiff to pay medical practitioners costs of and incidental to certain appearances
Rawlings v Rawlings (VSC) - negligence - worker employed by parents - parents did not owe duty of care to avoid inflicting psychiatric injury on worker - claim dismissed
Ballandis v Swebbs (QCA) - workers compensation - appeal against assessment of damages dismissed
Merrick Tyler Pty Ltd v Commissioner of Main Roads (WASCA) - compulsory acquisition of land - meaning of ‘adjoining land’ under Land Administration Act 1997 (WA) - appeal dismissed
Summaries With Link (Five Minute Read)
Cupac v Cannone [2015] NSWCA 114
Court of Appeal of New South Wales
Macfarlan & Meagher JJA; Sackville AJA
Damages - motor accidents compensation - appellant injured in motor vehicle accident - respondent admitted negligence but did not admit negligence caused injuries - primary judge assessed damages and entered judgment for appellant - common ground appellant not entitled to compensation for non-economic loss - appellant appealed against award of damages for past and future economic loss - conflicting medical opinions - residual earning capacity - held: no inadequacy of reasons for decision - primary judge not obliged to consider state of labour market for someone with appellant’s level of training and skills, given appellant adduced no evidence on such matters - no appellable error by failure to expressly refer to inflation rate - appeal dismissed.
Hughes v Alcantara [2015] NSWSC 508
Supreme Court of New South Wales
Harrison J
Costs - plaintiff with history of mental health problems claimed damages from medical practitioner - plaintiff alleged drug prescribed by medical practitioner was contraindicated for patients who had suffered from mental problems and that as a result of taking drug he suffered a mental breakdown and severe mental problems - statement of particulars did not provide accountant’s report or documentation on which plaintiff intended to rely to establish pre-injury income - medical practitioner sought costs of appearances and costs thrown away concerning proof of economic loss and delay caused by plaintiff investigating and obtaining evidence - held: plaintiff to pay defendant’s costs of and incidental to certain appearances
Rawlings v Rawlings [2015] VSC 171
Supreme Court of Victoria
Dixon J
Negligence - workplace injury - employer’s duty of care - plaintiff carpenter suffering from major depressive disorder was employed by his parents (the defendants) in building business - plaintiff claimed that mother directed him to undertake work for which he was not trained or experienced and that the significant stress of undertaking the work caused his psychiatric injury - plaintiff sought leave pursuant to s135A(4)(b) Accident Compensation Act 1985 to bring common law claim for damages against employer - County Court judge found for plaintiff -  employer appealed against rejection of defence that worker’s application statute barred - Court of Appeal dismissed appeal  - unusual nature of employment relationship overlaid with familial relationship - no perceived risk of psychiatric injury - employer under insolvency - employment stress intertwined with familial stress - nature of employment -  held: defendants did not owe plaintiff duty to use reasonable care to avoid inflicting psychiatric injury on him - claim dismissed.
Ballandis v Swebbs [2015] QCA 76
Court of Appeal of Queensland
Fraser, Gotterson & Morrison JJA
Workers compensation - appellant employed to perform work at various locations - appellant injured while travelling home from work as passenger in utility owned by employer and driven by first respondent co-worker - appellant sued first respondent and third party insurer of utility for damages - liability not in issue -  primary judge held that because claim came under s35 Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA), Civil Liability Act 2003 (Qld) applied to assessment of damages - primary judge assessed damages on that basis awarding $9,800 for general damages and nothing for a gratuitous care claim - appellant sought to challenge findings - application of s35 WCRA - appropriate assessment of damages if CLA did not apply - whether appellant on journey home from place of employment - whether employment significant contributing factor in appellant’s being injured - held: s35 WRCA applied - CLA applied to assessment of damages - appeal dismissed.
Merrick Tyler Pty Ltd v Commissioner of Main Roads [2015] WASCA 82
Court of Appeal of Western Australia
Newnes & Murphy JJA; Beech J
Compulsory acquisition of land - statutory interpretation - appellant owned two parcels of land - respondent compulsorily acquired part of land (Eastern land) - appellant claimed compensation for reduction in value of other part of land (Western land)  - appellant appealed against trial judge’s determination Western land was not ’adjoining land’ to Eastern land for the purposes of s241 Land Administration Act 1997 (WA) - appellant contended trial judge erred in construing ’adjoining’ as referring only to land contiguous with land taken under pt 9 - held: words ’adjoining land’ in s 241 read in context of Act did not permit broader construction advanced by appellant - appeal dismissed.