Weekly Insurance Law Review: Friday, 11 September 2015 View in browser
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A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Insurance Law Review

Executive Summary (One Minute Read)
Minister of Defence and Military Veterans v Thomas (CCT168/14) (ZACC) - negligence - ‘employer’ - fundamental right to bodily integrity and security of person underlying workplace damages claim - appeal dismissed
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) (SCC) - human rights - discrimination - no connection between company’s refusal to train pilot and pilot’s ethnic or national origin - appeal dismissed
Fuller-Lyons v New South Wales (HCA) - negligence - child injured in fall from train operated by State - failure to keep proper look-out - State liable - appeal allowed
Sgro v Australian Associated Motor Insurers Ltd (NSWCA) - insurance - fraud - vehicle insured by insurer - no error in finding vehicle not stolen - claim under insurance policy refused - appeal dismissed
Naaman v Sleiman (NSWCA) - damages - contract - claim for loss of bargain not addressed - miscarriage of justice - appeal allowed - retrial
Sharp v Parramatta City Council (NSWCA) - negligence - occupier’s liability - appellant injured on landing after jumping from diving platform at swimming centre - Council not liable - appeal dismissed
Collins v Clarence Valley Council (NSWCA) - negligence - cyclist injured in fall from wooden bridge when tyre became stuck in gap between planks during charity ride - Council not liable - appeal dismissed
Solomons v Pallier (NSWCA) - negligence - motor vehicle accident - contributory negligence established against injured passenger - just and equitable reduction 10% - appeal allowed
Hawkins v Ross Human Directions Ltd (NSWCA) - negligence - employee injured while lifting boxes to return them to storage - employer not liable - appeal dismissed
Wei Fan v South Eastern Sydney Local Health District (No 2) (NSWSC) - medical negligence - contract - claims against Health District for failure to diagnose conditions and perform operation dismissed
Stealth Enterprises Pty Limited trading as The Gentleman’s Club v Calliden Insurance Limited (NSWSC) - insurance - fire and business interruption policy - fire at brothel premises - non-disclosure - insurer entitled to reduce liability to nil under policy
Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd (NSWSC) - contract - no agreement to negotiate a lease in good faith or at all - compensation for confidential information wrongly obtained - claim otherwise dismissed
Klein v National Australia Bank Ltd (VSC) - summary judgment - malicious prosecution - no causal connection between bank’s conduct and prosecution of plaintiff - claim dismissed
Di Paolo v Salta Constructions Pty Ltd (VSCA) - choice of law - workplace injury - limitations - uniform cross-border compensation legislation - claims governed by common law of Western Australia - appeal dismissed
Marsh v Baxter (WASCA) - negligence - nuisance - claim arising from escape of genetically modified (GM) canola from farm onto neighbouring certified organic farm dismissed
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)
Minister of Defence and Military Veterans v Thomas (CCT168/14) [2015] ZACC 26
Constitutional Court of South Africa
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ & Tshiqi AJ.
Negligence - respondent doctor employed by provincial government injured while on secondment to military hospital under control of applicant Minister - Compensation for Occupational Injuries and Diseases Act 130 governed compensation doctor may claim arising from injuries - compensation in two guises: for prescribed benefits payable irrespective of any negligence by employer, and for damages that were caused by third party at workplace (workplace damages) - workplace damages claim was ordinary delictual claim - doctor lodged claim against provincial government under Compensation Act for occupational injury benefits - no dispute doctor entitled to benefits - doctor also instituted delictual damages claim against Minister or company responsible for providing hygiene services at hospital - Minister lodged special plea resisting workplace damages claim - Minister argued doctor precluded from claiming under section s35(1) - essential question was who was doctor’s employer - whether employer was State as single employer or its individual components i.e. provincial government - ‘employer’ - held: Court upheld Supreme Court of Appeal’s interpretation - Supreme Court of Appeal did not regard “the State” or Government as doctor’s employer but rather head of particular provincial government department as reflected in employment contract - doctor’s fundamental right to bodily integrity and security of her person which underlay her common law claim for workplace damages was at stake - Minister’s interpretation more restrictive of doctor’s rights and would prevent her from bring further delictual claim - appeal dismissed.
Minister )
[From Benchmark Monday, 7 September 2015]
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39
Supreme Court of Canada
McLachlin C.J. and Abella, Rothstein, Cromwell, Karakatsanis, Wagner and Côté JJ.
Human rights - discrimination - Canadian company (B) trained pilots - Canadian citizen born in Pakistan (L) held Canadian and US pilot’s licences - L registered for training under US licence - US authorities refused to issue security clearance for L - B denied to train L under US licence on basis of US’s refusal to issue security clearance - B also refused to train L under Canadian licence - Commission alleged B had impaired L’s right to avail himself of services ordinarily offered to public and right to safeguard of his dignity and reputation without discrimination based on ethnic or national origin contrary to ss4, 10 &12 Quebec Charter of human rights and freedoms - Tribunal agreed with Commission - Court of Appeal set aside Tribunal’s decision on basis Tribunal could not find B discriminated against L without proof U.S. authorities’ decision was based on ground prohibited under Charter - whether ‘prima facie’ discrimination established - whether connection between B’s decision and L’s ethnic or national origin- held: not open to Tribunal to conclude B’s decision constituted prima facie discrimination under the Charter - B’s decision to deny L’s request for training had been based solely on US refusal to issue security clearance - Commission did not adduce sufficient evidence to show L’s ethnic or national origin played any role in US authorities’ refusal to issue security clearance - appeals dismissed.
Quebec
[From Benchmark Tuesday, 8 September 2015]
Fuller-Lyons v New South Wales [2015] HCA 31
High Court of Australia
French CJ; Bell, Gageler, Keane & Nettle JJ
Negligence - child passenger injured in fall from moving train after being trapped by train door - child claimed injuries caused by State's negligence - primary judge found negligence established by failure of station staff for failure to keep proper look-out to observe gap in door where child was located and those parts of his body that protruded before signalling for train to leave station - ultimate conclusion of negligence had rested on inferential fact-finding - State appealed - Court of Appeal allowed appeal - Court of Appeal held there was insufficient evidence to enable affirmative conclusion that substantial part of child's body protruding from doors when train left station and identified alternative hypotheses that did not entail negligence on the part of railway staff - held: Court of Appeal erred in overturning primary judge's ultimate factual finding which was correct notwithstanding other possible explanations could not be excluded - Court or Appeal erred in overturning findings on basis appellant failed to exclude alternative hypothesis not explored in evidence - appeal allowed.
Fuller-Lyons
[From Benchmark Thursday, 3 September 2015]
Sgro v Australian Associated Motor Insurers Ltd [2015] NSWCA 262
Court of Appeal of New South Wales
Beazley P, Meagher JA & McDougall J
Insurance - fraud - appellant owned motor vehicle he alleged was stolen - respondent was insurer of vehicle - respondent refused plaintiff’s claim on insurance policy - appellant sued insurer for payment under policy in amount of agreed value of vehicle plus interest - respondent denied appellant entitled to payment and alleged claim fraudulent under s56 Insurance Contracts Act 1984 (Cth) - primary judge rejected appellant’s claim not being satisfied to requisite standard vehicle was stolen - primary judge also found respondent entitled to refuse appellant’s claim pursuant to s56 - primary judge did not make finding of fraud but held appellant “for whatever reason” was not honest and candid in answers he gave in relation to claim - requirements for pleading of fraud - test for fraud - held: no error in findings as to timing of events on day vehicle allegedly stolen - primary judge made factual findings open on evidence with ultimate finding she was not satisfied vehicle stolen - accordingly plaintiff’s claim failed - primary judge’s statement that “for whatever reason” respondent’s entitlement to have claim refused under s56 did not satisfy fundamental requirement of finding of fraud namely specific finding that fraud or contravening conduct had in fact occurred - appeal dismissed.
Sgro
[From Benchmark Thursday, 3 September 2015]
Naaman v Sleiman [2015] NSWCA 259
Court of Appeal of New South Wales
Meagher, Ward & Gleeson JJA
Damages - contract - appellant claimed proceeds of sale of unit against first respondent - appellant claimed liquidated sum against second and third respondents under deed or alternatively damages for breach of deed in that amount - primary judge dismissed plaintiff’s claims - in further judgment primary judge ordered that subject to costs orders made in relation to specific matters plaintiff should otherwise pay first respondent’s and second respondent’s costs of proceedings - plaintiff appealed against order dismissing claim against second respondent and third respondent, and costs order made in favour of first respondent and second respondent - no appeal against order dismissing plaintiff’s claims against first respondent - held: Court concluded appeal against costs order in favour of first respondent dismissed with costs - appeal otherwise allowed - error of law because plaintiff’s claim for damages for loss of bargain not addressed resulting in substantial miscarriage of justice - orders dismissing proceedings against second and third respondents set aside - new trial on quantification of damages ordered.
Naaman
[From Benchmark Thursday, 3 September 2015]
Sharp v Parramatta City Council [2015] NSWCA 260
Court of Appeal of New South Wales
Meagher, Ward & Gleeson JJA
Negligence - occupier’s liability - appellant injured when she landed awkwardly after jumping from diving platform at swimming centre - appellant claimed Council breaching its duty as occupier of to take reasonable care to avoid foreseeable risks of injury to persons using pool and diving tower - primary judge dismissed appellant’s claim on basis there was warning sign at base of stairs to diving tower and that lifeguard had instructed appellant as to how to fall - ss5B, 5D, 5F, 5H, 5I, 5K, 5L, 5M & 5R Civil Liability Act 2002 (NSW) - held: no error in primary judge’s non-acceptance of appellant’s evidence that lifeguard instructed her to “run and jump” - warning sign sufficiently identified general nature of risk of injury - lifeguard’s instructions did not contradict warning given by sign - risk of injury was obvious - activity was dangerous recreational activity - Council was entitled to rely upon s5L to deny liability - appeal dismissed.
Sharp
[From Benchmark Friday, 4 September 2015]
Collins v Clarence Valley Council [2015] NSWCA 263
Court of Appeal of New South Wales
McColl, Macfarlan & Emmett JJA
Negligence - cyclist injured in fall from wooden bridge when tyre became stuck in gap between planks during charity ride - cyclist alleged injuries caused by council’s negligence - primary judge dismissed proceedings - primary judge found relevant risk of harm was risk of injury to cyclist if wheels became stuck in gaps between planks - risk foreseeable and not insignificant - risk an obvious risk to reasonable person in cyclist’s position - council had no duty to warn cyclist of risk by erection of sign - council not liable for failure to repair or inspect bridge because not shown council had actual knowledge of particular risk materialisation of which resulted in harm to cyclist - given council’s limited resources and other responsibilities, reasonable person in council’s position would not have undertaken precaution of repairing bridge - at time of accident cyclist not engaged in dangerous recreational activity - no contributory negligence - appellant appealed - ss5B(1)(c), 43A, 45, 42, 5C(a), 5H & 5L Civil Liability Act 2002 (NSW) - held: primary judge did not err in identifying risk of harm prospectively or in finding risk of harm obvious - 5H operated independently of necessity to prove voluntary assumption of risk - erection of a sign involved exercise of special statutory power for purposes of s43A(2) - evidence did not establish person within Council with relevant authority to carry out roadwork had actual knowledge of particular risk that materialised - contention that Council should have taken precautions other than erection of sign was impermissible challenge to Council’s general allocation of resources and precluded by s42(b) - appeal dismissed.
Collins
[From Benchmark Friday, 4 September 2015]
Solomons v Pallier [2015] NSWCA 266
Court of Appeal of New South Wales
Macfarlan, Meagher & Simpson JJA
Negligence - motor vehicle accident - respondent passenger injured in motor accident when vehicle partly left the roadway and rolled - appellant P plate driver mildly intoxicated and held provisional licence - passenger sued driver in negligence - only issue was whether passenger guilty of contributory negligence for voluntarily accepting a lift from P plate driver whose driving capacity passenger knew or ought to have known to be impaired by intoxication - primary judge not satisfied passenger had been contributorily negligent - even if passenger contributorily negligence primary judge concluded it was not just and equitable to make any reduction - held: no error in finding that driver had deliberately driven the vehicle partly off the roadway - primary judge erred in failing to find passenger contributorily negligent - just and equitable reduction was 10% - appeal allowed.
Solomons
[From Benchmark Friday, 4 September 2015]
Hawkins v Ross Human Directions Ltd [2015] NSWCA 265
Court of Appeal of New South Wales
Gleeson & Leeming JJA; Beech-Jones J
Negligence - employee injured while lifting boxes to return them to storage - system of work involved lifting boxes of up to 9.8 kg - primary judge found box lifted by employee weighed no more than 7 kg - primary judge found employer not negligent - employee contended primary judge failed to consider evidence she had to bend and twist at the same time while lifting boxes, that there was failure to consider or properly to consider aspects of the evidence, and that primary judge erred in finding there was no requirement to keep runners present until all boxes put away - whether employee established breach of duty - whether real risk of injury in employee lifting boxes weighing no more than 9.8 kg - r51.53 Uniform Civil Procedure Rules 2005 (NSW) - held: error established in some of primary judge’s reasoning - however no substantial miscarriage of justice arising from errors - breach of duty not established - even if breach established it remained difficult to see how employee could establish causation - appeal dismissed.
Hawkins
[From Benchmark Wednesday, 9 September 2015]
Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235
Supreme Court of New South Wales
Harrison AsJ
Medical negligence - contract - plaintiff claimed against Health District for failure to diagnose Type 2 diabetes, failure to diagnose cholecystitis and failure to carry out cholecystectomy - duty and standard of care - causation - contributory negligence - failure to mitigate - ‘volenti non fit injuria’ - Civil Liability Act 2002 (NSW) - National Health Act 1953 (Cth) - held: plaintiff did not establish defendant breached duty of care or that if it breached its duty or duties of care it caused the plaintiff to suffer any injury or damage - case against defendant in negligence and breach of contract failed - verdict and judgment for Health District.
WeiFan
[From Benchmark Thursday, 3 September 2015]
Stealth Enterprises Pty Limited trading as The Gentleman’s Club v Calliden Insurance Limited [2015] NSWSC 1270
Supreme Court of New South Wales
Schmidt J
Insurance - plaintiff company owned and operated brothel - brothel’s premises insured for fire and business interruption under policy renewed by defendant insurer - fire damaged premises and resulted in brothel ceasing to trade - insurer denied liability under policy on basis plaintiff Calliden failed to comply with disclosure obligations under Insurance Contracts Act 1984 (Cth) - insurer contended failure to comply with disclosure obligations entitled it to reduce its liability under the policy to nil - non-disclosure of association with bikie gang - non-disclosure of lapse of business registration - held: no issue that under s 28(3) insurer could reduce its liability under a policy to nil in appropriate - Court satisfied it was such an appropriate case and that if necessary disclosures had been made, policy would not have been issued in 2010 or renewed in 2011 - judgment for insurer.
Stealth
[From Benchmark Friday, 4 September 2015]
Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd [2015] NSWSC 1273
Supreme Court of New South Wales
Kunc J
Contract - lease - equity - intellectual property - defendants developed hotel adjacent to beach - defendant asked owner of plaintiff if he would be interested to run hotel’s catering operations - owner said he would - owner became involved in design of hotel’s catering and diverted staff and resources from other catering undertakings in anticipation of operating hotel - when hotel opened company provided catering - defendant terminated arrangement under which plaintiff operated at hotel - dispute arose because parties did not reach agreement on final terms governing relationship - plaintiff put case in contract, equitable estoppel and misleading and deceptive conduct - defendants contended plaintiff knew agreement might not be reached but took commercial risk which had eventuated through no fault of defendants - there was also dispute about value of confidential information of plaintiff obtained by defendants - held: agreement was not an agreement to negotiate a lease in good faith or at all.- - no equitable estoppel in favour of plaintiff - no unconscionable conduct by defendants in abandoning negotiations - defendants did not engage in misleading and deceptive conduct - defendants not unjustly enriched and not otherwise liable in restitution - judgment for plaintiff for $15,000 in compensation for confidential information wrongfully obtained by defendant - claim otherwise dismissed.
Caves
[From Benchmark Monday, 7 September 2015]
Klein v National Australia Bank Ltd [2015] VSC 460
Supreme Court of Victoria
Rush J
Summary judgment - malicious prosecution - plaintiff sued bank for malicious prosecution - bank sought that claim be struck out pursuant to s63 Civil Procedure Act 2010 (Vic), r23.01 Supreme Court (General Civil Procedure) Rules 2005 (Vic) and/or Court’s inherent jurisdiction - held: plaintiff’s claim did not have reasonable prospects of success - plaintiff failed to satisfactorily allege key element of cause of action that bank actively instrumental in instigating prosecution - bank’s conduct not causally connected to police’s decision to prosecute - conduct alleged by plaintiff ‘insufficient to ground an action in malicious prosecution - proceedings dismissed pursuant to s63.
Klein
[From Benchmark Monday, 7 September 2015]
Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230
Court of Appeal of Victoria
Osborn & Kyrou JJA; Garde AJA
Choice of law - limitations - worker sued respondents for workplace injuries sustained in Perth - worker was resident of State of Victoria and working in Perth at time of accident - worker contended law of Victoria governed proceeding - primary judge found worker’s claims against two respondents governed by substantive law, including applicable limitation periods, of common law of Western Australia, unmodified by Div 1a Pt IV Workers’ Compensation and Injury Management Act 1981 (WA) (WCIMA) - effect of finding was that worker’s claims were statute-barred - worker sought leave to appeal - effect of national uniform legislation for coverage of workers operating temporarily in another jurisdiction - limitation period governing claims - ss80, 129MA & 129MB Accident Compensation Act 1985 (Vic) (AC Act) - ss20, 93AA, 93AB WCIMA - whether trial judge misconstrued similarly-worded choice of law provisions of s129MB AC Act and s93AB WA Act.- statutory construction - purpose of amendments to AC Act which inserted choice of law provisions - held: leave to appeal granted - worker’s contentions as to proper statutory construction rejected - appeal dismissed.
DiPaolo
[From Benchmark Tuesday, 8 September 2015]
Marsh v Baxter [2015] WASCA 169
Court of Appeal of Western Australia
McLure P; Newnes & Murphy JJA
Negligence - nuisance - pure economic loss - appellants appealed against dismissal of claim against respondent arising from escape of genetically modified (GM) canola from respondent's farm onto appellants' neighbouring certified organic farm - not in dispute GM plant material that landed on appellants' farm posed no risk of any genetic trait transfer to crop or produce on appellants' land held - (by majority): held: appellants did not establish duty of care owed in circumstances - trial judge did not err in concluding no unreasonable interference with appellants' use and enjoyment of their farm land as result of incursion of GM canola swathes from respondent’s farm land - in relation to causation, neither party contended that s5C Civil Liability Act 2002 (WA) applied to claim in nuisance - appeal dismissed.
Marsh
[From Benchmark Monday, 7 September 2015]
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.

Keats