Weekly Insurance Law Review: Friday, 13 November 2015
For the best view, please download images or click here
AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Insurance Law Review

Executive Summary (One Minute Read)
Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel (SCC) - trusts - liens - interaction between statutory remedies of construction liens and statutory trusts in provincial legislation - trust and lien provisions existed separately and could be concurrently pursued - appeal dismissed
Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape (CCT185/14) (ZACC) - medical negligence - failure to transfer injured applicant to hospital - violation of right to emergency medical treatment - respondent negligent - appeal upheld
Comcare v Reardon (FCA) - workers compensation - aggravation of medical condition by employment - no error in decision of Administrative Appeals Tribunal - appeal dismissed
Nominal Defendant v Smith (NSWCA) - motor accidents compensation - issue whether unidentified vehicle involved in collision - miscarriage of fact process - outstanding matters remitted to District Court
TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH (NSWCA) - contract - estoppel - consumer law - no entitlement to ongoing supply of parts or support arising from implied term or estoppel - appeals dismissed
TriCare (Hastings) Ltd v Allen (NSWCA) - competency of appeal - appeal misconceived and incompetent because brought against reasons, not “judgment or order” - appeal dismissed
Pi v Zhou (NSWSC) - assault - interference with quiet enjoyment - eviction - conversion - failure to establish claims - judgment for defendants
Kencian v Watney (QCA) - defamation - trial to proceed as trial by jury at appellants’ election - appeal allowed
Nichols v Earth Spirit Home Pty Ltd (QCA) - building contract - no error in decision that oral building contract was enforceable - leave to appeal granted - appeal dismissed
Flegg v Hallett (QSC) - costs - defamation - unreasonable failure to accept settlement offers - defendant to pay plaintiff’s costs on indemnity basis
Benchmark Television
Click here to watch the video
Matthew Collins QC on Drafting Imputations
Internationally acclaimed author on the law of defamation Dr Matthew Collins QC discusses the pleading of imputations in defamation actions and importantly what not to do.
Click here to watch the video
ANZIIF General Insurance Breakfast
Now in its 27th year, the ANZIIF General Insurance Breakfast brings together a panel of insurance experts to speak about where the market is today and the future of the industry.
Summaries With Link (Five Minute Read)
Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel, 2015 SCC 43
Supreme Court of Canada
McLachlin C.J. and Rothstein, Cromwell, Moldaver, Wagner, Gascon & Côté JJ
Trusts - liens - appellant was general contractor - respondent was subcontractor for construction project - respondent filed builder’s lien against property on which work being done - appellant filed lien bond in amount of respondent’s claim and sought declaration it had satisfied its trust obligations - respondent sought payment of its past-due invoices upon appellant receiving funds from owner - Court of Appeal overturned decision of motion judge that security in form of lien bond extinguished appellant’s trust obligations pursuant to Manitoba Builders’ Liens Act - Court of Appeal concluded subcontractors had two rights to sue for breach of contract beyond common law right: right to statutory trust and right to file lien - interaction of statutory remedies of construction liens and statutory trusts in provincial legislation - held: trust and lien provisions independent and could be pursued concurrently under s66 - lien bond secured contractor’s or subcontractor’s lien claim and did not extinguish obligations under statutory trust - filing of lien bond did not affect existence and application of trust remedy - appeal dismissed.
Stuart Olson Dominion
[From Benchmark Wednesday, 11 November 2015]
Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape (CCT185/14) [2015] ZACC 33
Constitutional Court of South Africa
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J and Theron AJ
Medical negligence - applicant sustained spinal cord injury during rugby match- applicant treated at three hospitals under respondent’s control - applicants injuries rendered him quadraplegic - applicant claimed hospital personnel negligent by failing to promptly treat spinal cord injuries or to treat him within four hours of injury - High Court found delays unreasonable and therefore applicant was refused emergency medical treatment - Supreme Court reversed High Court decision - held (by majority): a reasonable doctor in respondent’s employment would have transferred applicant directly to the hospital in which he would have probably received the appropriate treatment within four hours of his injuries - applicant’s quadraplegia could probably have been avoided if appropriate treatment given to him promptly - respondent’s failure to promptly refer applicant to the hospital was negligent and violated applicant’s right to emergency medical treatment - appeal upheld.
[From Benchmark Wednesday, 11 November 2015]
Comcare v Reardon [2015] FCA 1166
Federal Court of Australia
Mortimer J
Workers compensation - respondent claimed compensation for injury identified as “Hyperacusis related to workplace noise exposure, with sensorineural hearing loss and tinnitus” - Comcare denied liability under s14 Safety, Rehabilitation and Compensation Act 1988 (Cth) - Administrative Appeals Tribunal found Comcare liable on basis respondent’s employment had contributed to a significant degree to aggravation of hyperacusis - Comcare appealed - test for aggravation - ss5A, 5B & 14 - held: no error in Tribunal’s finding in favour of respondent only on aggravation of hyperacusis by her employment - Tribunal correctly understood task in assessing respondent’s injuries and carefully and independently assessed medical evidence - no error of law - appeal dismissed.
[From Benchmark Friday, 6 November 2015]
Nominal Defendant v Smith [2015] NSWCA 339
Court of Appeal of New South Wales
Basten, Leeming & Simpson JJA
Motor accidents compensation - first respondent passenger injured when driver of vehicle (Mr Harris) lost control and vehicle collided with another vehicle - issue was whether an unidentified “black car” had cut in front of Mr Harris so he lost control when he applied brakes - trial judge accepted there was such vehicle, which driver of other vehicle (Ms Callister) did not see and that driver of unidentified vehicle bore 60% of responsibility for accident - basis of Mr Harris’ 40% responsibility unclear.- Nominal Defendant challenged finding there was an unidentified vehicle involved - Mr Harris challenged apportionment of liability to him - ss34 &145 Motor Accidents Compensation Act 1999 (NSW) - held: primary judge erred in summarily dismissing Ms Callister’s evidence, failed to weigh competing evidence of first respondent and Ms Callister on balance of probabilities and failed to assess reliability of first respondent’s evidence - primary judge used Mr Harris’ police statement for purpose contrary to ruling on which it was admitted - fact process had miscarried - outstanding issues remitted to District Court.
Nominal Defendant
[From Benchmark Thursday, 5 November 2015]
TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH [2015] NSWCA 343
Court of Appeal of New South Wales
Macfarlan & Meagher JJA; Bergin CJ Eq
Contract - estoppel - consumer law - appellants (TMA) purchased car parking guidance systems from Indect - Indect advised TMA that TMA would no longer distribute its products, directly supply equipment, parts or services, and that TMA would need to obtain parts and services from Indect distributor - TMA claimed Indect’s inclusion of authenticity check feature in systems involved breach of supply contract and unconscionable conduct. - TMA claimed entitlement to receive ongoing supply of parts and support from Indect for systems it resold and installed on basis of contractual implied term, equitable estoppel and unconscionable conduct by Indect - primary judge fund in Indect’s favour - held: no breach of contract or unconscionable conduct - proposed term not necessary for effective operation of supply contracts - estoppel claim failed - primary judge erred in formulation of unconscionability under s21 Competition and Consumer Act 2010 (Cth) - TMA did not engage in conduct against good conscience - appeals dismissed.
[From Benchmark Monday, 9 November 2015]
TriCare (Hastings) Ltd v Allen [2015] NSWCA 344
Court of Appeal of New South Wales
Ward & Simpson JJA; Tobias AJA
Competency of appeal - NSW Civil and Administrative Tribunal (NCAT) terminated residential site agreements concerning respondent’s relocatable dwellings under s113 Residential Parks Act 1998 (NSW) (the Act) and granted appellant vacant possession of land on which dwellings located - NCAT awarded respondents compensation pursuant to s128 - respondents sought judicial review of NCAT’s findings - appellant sought to challenge primary judge’s obiter observations concerning construction of s130A regarding valuation of dwellings - appellant also sought variation of primary judge’s remittal order in light of its construction of s130A - s101(1)(a) Supreme Court Act 1970 (NSW) - held: appeal misconceived and incompetent because it was brought against reasons not “judgment or order” - appeal dismissed as incompetent.
[From Benchmark Wednesday, 11 November 2015]
Pi v Zhou [2015] NSWSC 1644
Supreme Court of New South Wales
Adamson J
Assault - first defendant and second defendant wife owned property with house and flat on it - plaintiff rented flat - altercation between plaintiff and first defendant in yard of property - injuries sustained by both - plaintiff claimed damages for breach of contract against first defendant arising from interference with quiet enjoyment of flat and forced eviction from property, damages against defendants for assault and damages against first defendant for conversion of washing machine - s140 Evidence Act 1995 (NSW) - s51 Consumer Trader and Tenancy Act 2001 (NSW) - held: plaintiff did not establish liability against defendants for assault, prove claim of breach of covenant of quiet enjoyment and alleged forced eviction, orthat any act or omission alleged against defendants had any bearing on whether plaintiff could engage in any occupation - plaintiff failed to establish factual elements of conversion claim - judgment for defendants.
[From Benchmark Wednesday, 11 November 2015]
Kencian v Watney [2015] QCA 212
Court of Appeal of Queensland
Carmody CJ; Morrison JA & Boddice J
Defamation - election and procedure for trial by jury - respondent was school principal at school attended appellants’ children - respondent claimed he was defamed by appellants in letter sent they sent to school authorities - appellants sought to challenge dismissal of application for orders relating to election and procedure for trial by jury under Defamation Act 2005 (Qld) - whether a party who elected for trial by jury abandoned that election by refusal to pay jury fees, in absence of a court order - whether trial by jury should have been ordered under r475 Uniform Civil Procedure Rules 1999 (Qld) - held: primary judge erred in dismissing application - test to be applied was whether Court satisfied proceeding could appropriately be tried by jury - proceeding could be appropriately tried by jury - just and expeditious resolution of proceedings not likely to be frustrated - appeal allowed - trial to proceed as trial by jury at appellants’ election pursuant to r475(1).
[From Benchmark Thursday, 5 November 2015]
Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219
Court of Appeal of Queensland
M McMurdo P, Philipides JA & Boddice J
Building contract - applicant sought leave to appeal against Queensland Civil and Administrative Tribunal decision to uphold enforcement of oral building contract between applicant and respondent - respondent sought to support decision on basis it was entitled to recover judgment sum on restitutionary basis - whether wholly oral building contract enforceable under provisions of Queensland Building and Construction Commission Act 1991 (Qld) and public policy - ss67E(2) & 67G - held: Appellate Tribunal correctly found oral contract not unenforceable due to fact respondent committed offence by entering building contract which was not reduced to writing - Appeal Tribunal also correctly found nothing in s67E(2) required finding that contract was unenforceable - no good reasons of public policy to support conclusion contract unenforceable - leave to
[From Benchmark Tuesday, 10 November 2015]
Flegg v Hallett [2015] QSC 315
Supreme Court of Queensland
P Lyons J
Cost - defamation - Court determined defendant defamed plaintiff - plaintiff sought indemnity costs on basis of defendant’s unreasonable failure to accept its two settlement offers - ss13, 14, 15 & 40 Defamation Act 2005 (Qld) - settlement proposed on bases including that defendant publish apology - nature of apology - non-disparagement clause - held: defendant’s failure to agree to settlement offers was unreasonable - defendant to pay plaintiff’s costs on indemnity basis.
[From Benchmark Wednesday, 11 November 2015]
Poem for Friday (Recitation here by Thomas Hellier)
The Lake Isle of Innisfree

I will arise and go now, and go to Innisfree,
And a small cabin build there, of clay and wattles made;
Nine bean-rows will I have there, a hive for the honey-bee,
And live alone in the bee-loud glade.

And I shall have some peace there, for peace comes dropping slow,
Dropping from the veils of the morning to where the cricket sings;
There midnight’s all a glimmer, and noon a purple glow,
And evening full of the linnet’s wings.

I will arise and go now, for always night and day
I hear lake water lapping with low sounds by the shore;
While I stand on the roadway, or on the pavements grey,
I hear it in the deep heart’s core.