Insurance Monday, 9 March 2015 View in browser

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


Click here to listen to the Benchmark Daily Insurance podcast
Executive Summary (One Minute Read)
Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General (NSWCA) - insurance - order for security for costs - stay
Lam v Rolls Royce PLC (No 3) (NSWSC) - class action - discovery refused - “class closure” orders
Wesfarmers v Linfox Australia Pty Ltd (VSC) - accident compensation - indemnity proceeding - psychological condition caused by work injury - Factor X calculated
Zealley v Liquorland (Aust) Pty Ltd (VSC) - work injury damages - worker injured while unloading truck - employer’s liability 40% - truck owner-operator’s liability 60%
Oliver Hume (Australia) Pty Ltd v Land Source Australia Pty Ltd (VSC) - pleadings - claim for unpaid real estate commission - leave granted to file amended writ and statement of claim
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (QCA) - discovery - defendants not required to disclose categories of documents - appeal dismissed
Summaries With Link (Five Minute Read)
Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 33
Court of Appeal of New South Wales
McColl & Gleeson JJA; Beech-Jones J
Stay - security for costs - insurance - premises destroyed by deliberately lit fire - applicant claimed damages against insurer for refusing to indemnify applicant under insurance policy - insurer denied claim on basis it was fraudulently made - applicant sought leave to appeal against order that he provide amount as security for insurer’s costs and that proceedings be stayed until security given - restraint on appellate intervention - cause of impecuniosity - whether case management irrelevant consideration - prospects of success - burden of proof for allegation of fraudulent claim - history of delay and non-compliance with directions - held: no error by primary judge - conclusion not unreasonable or plainly unjust - appeal dismissed.
Lam v Rolls Royce PLC (No 3) [2015] NSWSC 83
Supreme Court of New South Wales
Beech-Jones J
Class action - plaintiff sought orders for discovery against defendant - defendant sought orders to effect “class closure” and requiring potential class members to provide basic particulars of loss for purpose of advancing settlement discussions - ss60, 162, 175 & 183 Civil Procedure Act 2005 (NSW) - held: Court not satisfied mediation process exhausted - Court declined to order discovery, and instead to take whatever steps could reasonably be undertaken to promote mediation - revised orders for sending of opt out notices, a scheme for registration and proposed schedule of questions to be sent to potential members of the class - plaintiff to provide to defendant a definitive list of persons whom plaintiff contends were aboard flight.
Wesfarmers v Linfox Australia Pty Ltd [2015] VSC 63
Supreme Court of Victoria
J Forrest J
Accident compensation - indemnity proceeding - plaintiff self-insurer sought to recover from defendant payments of compensation made to worker for workplace injury - s138 Accident Compensation Act 1985 (Vic) - proportion of liability under Factor X of formula contained in s138(3) - whether assessment of damages payable by defendant as Factor A of s138(3) formula limited by reason of subsequent event unrelated to its tortious conduct  - held: Court accepted that worker’s  psychological condition (including the pseudo seizures) remained causally related to injuries sustained by her in workplace accident and their sequelae - chain of causation not broken - Factor X assessed at 60% and amount of damages under Factor A at $1,307,590.
Zealley v Liquorland (Aust) Pty Ltd [2015] VSC 62
Supreme Court of Victoria
J Forrest J
Work injury damages - negligence - worker injured when unloading truck  - worker developed psychiatric condition in which she continued to experience pseudo epileptic fits described as pseudo seizures - worker settled claims against employer and owner-operator of delivery truck - contribution dispute arose - responsibility of each defendant injuries pursuant to Part IV Wrongs Act 1958 (Vic) - held: truck owner-operator should bear lion’s share of responsibility for injuries - its acts and omissions both greater in culpability and causal potency than those employer - there was some substance to truck owner-operator’s allegation that part of worker’s damage related to employer requiring her to carry out work beyond certified medical capacity when she returned to work - however allegation was of minor significance when compared to injury and damage suffered as result of unloading accident - parties apportioned 40% to employer and 60% to truck owner-operator.
Oliver Hume (Australia) Pty Ltd v Land Source Australia Pty Ltd [2015] VSC 77
Supreme Court of Victoria
Cameron J
Pleadings - claim by estate agent for unpaid commission - agent sought leave to file and serve an amended writ and an amended statement of claim - proposed pleading contained rectification claims - agent sought to plead that even if Court found it failed to comply with Estate Agents Act 1980 (Vic), under equitable doctrine of rectification Court could order that agreement be rectified to accord with common intention - ss49A & 50 Estate Agents Act 1980 (Vic) - whether Act precluded Court from granting leave - held: agent should not be denied opportunity to file amended writ and amended statement of claim, including claims based on rectification of sales agreement, in face of provisions of the Act.
Oliver Hume (Australia) Pty Ltd
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2015] QCA 010
Court of Appeal of Queensland
Carmody CJ, Gotterson & Morrison JJA
Discovery - applicant was former member of charitable organisation - applicant brought proceedings for damages and injunction against charitable organisation arising from termination of membership - applicant sought disclosure of documents beyond those disclosed by defendants - primary judge found defendants not required to disclose categories of documents - held: no point of legal principle raised in appeal - no error of law shown - no denial of procedural fairness - appeal dismissed.