Daily Insurance: Friday, 11 September 2015 View in browser
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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)
Caason Investments Pty Ltd v Cao (FCAFC) - pleadings - corporations - representative proceedings - primary judge should not have refused leave to amend statement of claim to include pleadings of ‘market-based’ causation - appeal allowed
Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd (FCAFC) - contract - franchise agreement - rights and obligations in relation to operation of franchise businesses - two appeals - one appeal allowed - other appeal allowed in part
Workers’ Compensation Dust Diseases Board of NSW v Cook (NSWCA) - workers compensation - Workers’ Compensation (Dust Diseases) Act 1942 (NSW) did not permit Board to refuse claim for compensation because claimant recovered damages - appeal dismissed
Anderson v Ausgrid (NSWSC) - negligence - fire which damaged house caused by defendant’s negligent installation of replacement meter - judgment for house owners
Westpac Life Insurance Services Ltd v Guirgis (VSCA) - insurance - life insurance policy - no fraudulent non-disclosure or fraudulent misrepresentation - insurer’s appeal dismissed
Thomas v Trades and Labour Hire Pty Ltd (QSC) - negligence - driver and operator of tip truck injured when tailgate attached to tip truck dislodged and fell on foot - employer and host employer not liable
Woollard -v- The Medical Board of Australia Sitting as a Performance and Professional Standards Panel (WASC) - judicial review - finding of unsatisfactory professional conduct against medical practitioner - judicial review refused
Benchmark Television
Click here to watch the video
Matthew Collins QC and Ian Benson on Defamation Law
In this edition of Benchmark Television, Matthew Collins QC and Ian Benson discuss defamation law with particular reference to the Supreme Court of Victoria’s decision in Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263, where Mr Collins acted as counsel for the defendant. Mr Collins is also the leading author of ‘Collins on Defamation (Oxford University Press, 2014)’ and ‘The Law of Defamation and the Internet’ (Oxford University Press, 2001, 2005, 2010).
Summaries With Link (Five Minute Read)
Caason Investments Pty Ltd v Cao [2015] FCAFC 94
Full Court of the Federal Court of Australia
Gilmour, Foster & Edelman JJ
Pleadings - corporations - applicants brought representative proceeding pursuant to Pt IVA Federal Court of Australia Act 1976 (Cth) - claim under s729 Corporations Act 2001 (Cth) for compensation for loss or damage resulting from misstatement in or omission from disclosure document - primary judge refused leave to amend statement of claim to include pleadings of ‘market-based’ causation as distinct from ‘reliance-based’ causation (rejected amendments) - orders shut out applicants from pleading market-based causation in respect to ss 728-729 Corporations Act case - Group Member definition - Prospectus claims - misleading or deceptive conduct claims - Proper Test contention - Ingot contention - Profile Statement contention - Policy contention - Group Member definition contention - held: it could not be said rejected amendments which reflected causation theory were incapable of succeeding or liable to be struck out - primary judge rejected other bases on which it was contended proposed amendments should not be allowed - no basis for rejecting proposed amendments - primary judge shouldn’t have refused to grant leave to make rejected amendments - appeal allowed.
Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127
Full Court of the Federal Court of Australia
Middleton, Foster & Gleeson JJ
Contract - franchise agreement - Marmax Investments Pty Ltd (Marmax) and Spanline Weatherstrong Building Systems Pty Ltd (Spanline) appealed from two decisions of single judge - dispute between Spanline, Marmax and RPR Maintenance Pty Ltd (RPR) over parties’ rights and obligations in connection with Spanline franchise businesses operated by Marmax and RPR - Marmax and Spanline ordered to pay RPR damages for breach of contract - Marmax ordered to indemnify RPR for costs incurred to bring proceeding against it - Spanline to pay RPR additional damages and damages for RPR’s costs of proceedings against it - held: primary judge erred in finding contractual relationship between Marmax and RPR under sub-franchise agreement after certain date - Marmax’s conduct working in RPR’s territory during certain period did not breach sub-franchise agreement - Marmax’s “incursions” into RPR’s territory did not breach transfer of business agreement - Marmax not liable to pay damages to RPR - Marmax’s appeal allowed on certain grounds - primary judge erroneously found Spanline breached contractual obligations to RPR by not taking “reasonable and available” steps to ensure RPR’s territory remained exclusive - Spanline did not breach obligations to RPR by failing to adequately investigate RPR’s complaints about Marmax’s activities - Spanline did not breach contract by failing to demand Marmax give full disclosure of work done in RPR’s territory - permission given by Spanline to Marmax to perform work in RPR’s territory was breach of contract which caused RPR loss - Spanline’s appeal allowed in part.
Workers’ Compensation Dust Diseases Board of NSW v Cook [2015] NSWCA 270
Court of Appeal of New South Wales
Basten & Macfarlan JJA; Sackville AJA
Workers compensation - statutory interpretation - employee contracted pleural mesothelioma from exposure to asbestos in course of employment - employee sued company (Amaca) in Supreme Court of Victoria for damages for negligence - employee accepted offer of compromise served by Amaca - prior to settlement employee applied to Workers’ Compensation Dust Diseases Board of New South Wales for compensation under s8 Workers’ Compensation (Dust Diseases) Act 1942 (NSW) - Board refused application on basis that awarding employee compensation under Act would “amount to a double recovery” of compensation - employee appealed to District Court but died prior to judgment - District Court allowed appeal and made awards under Act for weekly payments for total disablement and for medical and other expenses - Board appealed - held: Act did not permit Board to refuse claim for compensation because claimant had recovered damages - appeal dismissed.
Anderson v Ausgrid [2015] NSWSC 1308
Supreme Court of New South Wales
Adamson J
Negligence - plaintiffs owned and lived in residential house on property - while plaintiffs on holiday fire started in or around the meter box on property - fire spread and damaged house - agreed that damage amounted to $819,676.50 (agreed figure) - about a month before fire defendant replaced one faulty meter - plaintiffs claimed agreed figure from defendant on basis of negligence - principal issue was cause of fire - ss5B, 5C, 5D, 5E & 5O Civil Liability Act 2002 (NSW) - whether fire caused by defective installation of meter - held: more probable than not that fire caused when resistance at joint where wire screwed to replacement meter generated sufficient heat to ionise surrounding gases - plaintiffs discharged onus of proving fire caused by defendant’s negligence - plaintiffs proved factual causation - if scope of liability had not been accepted by defendant Court would have found it was appropriate that responsibility for harm should be imposed on defendant - judgment for plaintiffs.
Westpac Life Insurance Services Ltd v Guirgis [2015] VSCA 239
Court of Appeal of Victoria
Hansen, Beach & Kaye JJA
Insurance - life insurance - respondent took out insurance policy with applicant which provided for payment of a monthly total disability benefit in event respondent suffered total disability within meaning of policy - policy also provided for payment of monthly partial disability benefit in event respondent became partially disabled under policy - respondent claimed on policy - respondent claimed she reduced working hours due to her fibromyalgia and that her arm and shoulder pain prevented her working - respondent subsequently advised applicant conditions producing asserted total disability had expanded to include ‘depressed mood - applicant contended respondent failed to comply with duty of disclosure under s21 Insurance Contracts Act 1984 (Cth) and advised applicant had avoided policy from inception in accordance with s29(2) - respondent claimed applicant breached policy - County Court gave judgment for respondent - applicant sought leave to appeal - held: no basis for attack on trial judge’s finding he could not conclude respondent ‘was aware of the fibromyalgia diagnosis in August 2007’ - no error in trial judge’s conclusion he was not satisfied there was any fraudulent non-disclosure or fraudulent misrepresentation by respondent - no error in trial judge not being satisfied applicant established no policy would have been entered into had respondent disclosed existence of fibromyalgia - leave to appeal granted - appeal dismissed.
Thomas v Trades and Labour Hire Pty Ltd [2015] QSC 264
Supreme Court of Queensland
Burns J
Negligence - plaintiff injured during course of work as driver and operator of tip truck tailgate attached to tip truck dislodged and fell on foot - plaintiff claimed damages in negligence from employer and host employer (Council) - s5 Civil Liability Act 2003 (Qld) - ss305C, 306N, 306F & 306H Workers’ Compensation and Rehabilitation Act 2003 (Qld) - Sch 9 Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) - held: risk of injury to driver and operator not reasonably foreseeable such as to give rise to duty of care to guard against risk - even if duty of care arose claim would fail by lack of proof of causation - no alleged deficiencies in system of work alleged had any causal bearing on accident - plaintiff’s claim failed.
Woollard -v- The Medical Board of Australia Sitting as a Performance and Professional Standards Panel [2015] WASC 332
Supreme Court of Western Australia
Allanson J
Judicial review - applicant was medical practitioner - patient suffered stroke during operation performed by applicant - Medical Board of Australia (Board) alleged unsatisfactory professional performance against applicant - panel of Board found applicant behaved in way constituting unsatisfactory professional conduct and cautioned him - applicant sought judicial review of finding - ss5, 23, 31, 35(1), 35(1)(c), 39, 41, 182, 182(1)(a), 184, 185, 186, 187,189, 190, 191, 192, 192(2) &192(3) Health Practitioner Regulation National Law (Western Australia) - held: reasons of panel not inadequate - open to panel to find that applicant failed to maintain appropriate records of discussions with patient - application to review dismissed.
On First Looking into Chapman's Homer
BY John Keats
Much have I travell'd in the realms of gold,
And many goodly states and kingdoms seen;
Round many western islands have I been
Which bards in fealty to Apollo hold.
Oft of one wide expanse had I been told
That deep-brow'd Homer ruled as his demesne;
Yet did I never breathe its pure serene
Till I heard Chapman speak out loud and bold:
Then felt I like some watcher of the skies
When a new planet swims into his ken;
Or like stout Cortez when with eagle eyes
He star'd at the Pacific—and all his men
Look'd at each other with a wild surmise—
Silent, upon a peak in Darien.