Daily Insurance: Tuesday, 8 December 2015
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

Executive Summary (One Minute Read)
Martin v Comcare (FCAFC) - administrative law - workers compensation - “adjustment disorder” - erroneous decision by Administrative Appeals Tribunal - appeal allowed - matter remitted
Saad v Fares (NSWCA) - personal injury - dog attack - statutory liability - credit - appeal allowed - findings of liability set aside - retrial ordered on all issues
Eastbury v Genea Ltd (formerly known as Sydney IVF Ltd) (NSWSC) - limitations - joinder - medical negligence - interim payment - orders
Bonavia v Transport Accident Commission (VSCA) - negligence - evidence - leave to appeal against jury’s verdict refused - no error in admission of evidence by trial judge - appeal dismissed
Ward v Smart So Hoe Pty Ltd (VSC) - real property - possession - plaintiff entitled to order for possession and payment of debt based on mortgage - judgment for plaintiff
Summaries With Link (Five Minute Read)
Martin v Comcare [2015] FCAFC 169
Full Court of the Federal Court of Australia
Siopis, Flick & Murphy JJ
Administrative law - workers compensation - appellant diagnosed with “adjustment disorder” claimed compensation pursuant to Safety, Rehabilitation and Compensation Act 1988 (Cth) - Comcare rejected liability on basis “injury” was “result” of appellant’s failure to be promoted - appellant claimed condition worsened by realisation she would be returning to position of working under certain supervisor - Administrative Appeals Tribunal set aside Comcare’s decision- primary judge allowed appeal and remitted matter to Tribunal - appellant appealed - ss44 & 44(7) Administrative Appeals Tribunal Act 1975 (Cth) - ss5A, 5A(1), 5A(2)(f), 5B, 14 & 20B Safety, Rehabilitation and Compensation Act 1988 (Cth) - Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) - held (by majority): Tribunal erred in approach to issue whether adjustment disorder was “suffered as a result of” the administrative action and issue whether administrative action was taken in reasonable manner - appeal allowed - matter remitted to Tribunal.
Saad v Fares [2015] NSWCA 385
Court of Appeal of New South Wales
Beazley P, Leeming JA & Emmett AJA
Personal injury - dog attack - statutory liability - credit - appellants appealed from judgments against them obtained by members of family after one family member attacked by dog or dogs at premises owned by second and third appellants - family members claimed two or three of the dogs owned by first appellant bit one family member causing other family members to suffer nervous shock - defence was that it was fourth dog owned by another person which bit the family member - primary judge found in favour of family members - principal challenge was as to finding of fact as to which dog or dogs bit the family member - whether primary judge failed to give adequate reasons for accepting evidence - ss5B-5E Civil Liability Act 2002 (NSW) - ss25 & 34 Companion Animals Act 1998 (NSW) - r51.53 Uniform Civil Procedure Rules 2005 (NSW) - held: Court could not resolve controversy between parties’ and witnesses’ competing recollections - findings of liability on set aside - appeal allowed - retrial on all issues ordered.
Eastbury v Genea Ltd (formerly known as Sydney IVF Ltd) [2015] NSWSC 1834
Supreme Court of New South Wales
Harrison AsJ
Limitations - medical negligence - joinder - plaintiffs sought leave to file further amended statement of claim joining cross defendant as second defendant to proceedings, order pursuant to s60G(2) Limitation Act 1969 (NSW) extending limitation period for cause of action against second defendant, order pursuant to s82 Civil Procedure Act 2005 (NSW) that first defendant pay to plaintiffs part of damages sought in proceedings - held: limitation periods extended - cross defendant joined as second defendant - further amended statement of claim is to be filed and served by 17 December 2015 - first defendant to make interim payment to plaintiffs within 28 days - orders made.
Bonavia v Transport Accident Commission [2015] VSCA 324
Court of Appeal of Victoria
Warren CJ; Santamaria & Ferguson JJA
Negligence - evidence - appellant apprentice bricklayer working for company - appellant was driving vehicle to get lunch for workers - appellant injured when vehicle collided with a truck - appellant claimed accident caused by another car which contacted his car causing him to lose control - appellant could not identify driver of other vehicle and sued Transport Accident Commission - jury found there no negligence on part of driver of an unidentified vehicle which caused injury, loss and damage - appellant contended jury’s verdict perverse, unreasonable or not in accordance with evidence - appellant also challenged admission of evidence that appellant had been charged, tried for and acquitted rape - appellant claimed evidence was of no probative value or outweighed by danger it might be unfairly prejudicial - ss55(1), 56(2) and 135(a) Evidence Act 2008 (Vic) - held: leave to appeal refused on ground in relation to jury’s verdict - evidence about rape charge, trial and acquittal could rationally affect probability appellant’s psychiatric condition partly caused by event unrelated to accident - trial judge balanced probative value and prejudice and put protections in place to contain prejudice - appeal dismissed.
Ward v Smart So Hoe Pty Ltd [2015] VSC 691
Supreme Court of Victoria
Ierodiaconou AsJ
Real property - possession - plaintiff advanced sum to first defendant under loan agreement with obligations guaranteed by second defendant - second defendant mortgaged property to to plaintiff as collateral - first defendant fell into arrears - plaintiff issued notice of default under s76 Transfer of Land Act 1958 (Vic) - plaintiff sought possession of property and judgment for mortgage debt - second defendant counterclaimed for redemption - ss77 & 78 - held: default notice on balance invalid with result it was insufficient to accelerate payment of loan - there had not been redemption - preconditions of s78(1) met - plaintiff entitled to possession - plaintiff entitled to payment of debt based on mortgage - judgment for plaintiff.