Weekly Insurance Law Review Friday, 13 March 2015 View in browser

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

Weekly Insurance Law Review

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Executive Summary (One Minute Read)
Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General (NSWCA) - insurance - order for security for costs - stay
Wright by his tutor Wright v Optus Administration Pty Ltd (NSWSC) - negligence - worker contracted out to Optus by labour hire company - worker injured in attack by co-worker - Optus liable
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%
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.
[From Benchmark 9 March 2015]
Wright by his tutor Wright v Optus Administration Pty Ltd [2015] NSWSC 160
Supreme Court of New South Wales
Campbell J
Negligence - plaintiff was employed by labour hire company - plaintiff and co-worker were undertaking training by Optus for work in call centre - plaintiff and co-worker employed to work for Optus by different agencies - plaintiff sued Optus for damages for injury suffered in attack by co-worker - plaintiff claimed that, at time of attack, Optus owed him a duty analogous to that owed by employer to employee - Optus denied it owed duty and contended the only relevant relationship was of occupier of premises and lawful entrant - applicability of personal agency agreement between labour hire company and Optus - application of s151Z Workers Compensation Act 1987 (NSW) - Pt 3 Civil Liability Act 2002 (NSW) - psychological injury - held: Optus owed duty of care to plaintiff - Optus breached duty of care by failing to take precautions against risk of harm - but for Optus’s failure to take precautions, the harm suffered would not have occurred - no contributory negligence - judgment for plaintiff.
Wright by his tutor Wright
[From Benchmark 11 March 2015]
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.
[From Benchmark 9 March 2015]
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.
[From Benchmark 9 March 2015]
by Carl Sandburg
Out of your many faces
Flash memories to me
Now at the day end
Away from the sidewalks
Where your shoe soles traveled
And your voices rose and blent
To form the city’s afternoon roar
Hindering an old silence.
I remember lean ones among you,
Throats in the clutch of a hope,
Lips written over with strivings,
Mouths that kiss only for love,
Records of great wishes slept with,
        Held long
And prayed and toiled for:
Written on
Your mouths
And your throats
I read them
When you passed by.
Carl Sandburg