Insurance, Banking, Construction & Government: Monday, 14 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 Composite

Insurance, Banking, Construction & Government

Executive Summary (One Minute Read)
Shift2Neutral Pty Ltd v Fairfax Media Publications Pty Ltd (NSWCA) - defamation - no error in upholding defence of justification - appeal dismissed (I B C)
Mackenzie v Allianz Australia Insurance Ltd (No. 2) (NSWSC) - judicial review - permanent impairment - no error in Review Panel’s assessment of whole person impairment - summons dismissed (I G)
Box Hill Institute of TAFE v Johnson (VSCA) - negligence - employer liable for aspect of employee’s claim for psychological injury - no prospects of success on appeal - leave to appeal refused (I)
RSPCA v Holdsworth (VSCA) - damages - negligence - destruction of cattle - loss of profit - leave to appeal against assessment of damages refused (I)
Atkinson v Habermann (QSC) - evidence - contract - appointment of single expert granted (I B C)
Baxter v Insurance Australia Ltd (ACTSC) - damages - motor vehicle accident - erroneous award of general damages - general damages increased - appeal allowed (I)
Baker v Mackenzie (ACTSC) - negligence - motor vehicle accident - child pedestrian stepped into side of car - driver negligent for not sounding horn - contributory negligence established - damages reduced by 80% (I)
Summaries With Link (Five Minute Read)
Shift2Neutral Pty Ltd v Fairfax Media Publications Pty Ltd [2015] NSWCA 274
Court of Appeal of New South Wales
McColl & Basten JJA; Simpson J
Defamation - second appellant incorporated first appellant (Shift2Neutral) - first appellant claimed to conduct “environmental audits” and “issue certificates representing credits under a carbon offset scheme” - newspaper published by first respondent published two articles prepared by second respondent - appellants sued respondents for defamation - trial judge found imputations conveyed and were defamatory - however trial judge upheld respondents’ defence of justification pursuant to s25 Defamation Act 2005 (NSW) and gave judgment for respondents - appellants contended that trial judge should have found it had not been established certificates not valuable or genuine or available to offset emissions - whether trial judge reversed onus of proof with respect to defence - held: appellants failed to demonstrate error by trial judge in upholding defence of justification - appeal dismissed.
Shift2Neutral (I B C)
Mackenzie v Allianz Australia Insurance Ltd (No. 2) [2015] NSWSC 1320
Supreme Court of New South Wales
Adamson J
Judicial review - plaintiff involved in motor vehicle accident - Review Panel issued certificate determining plaintiff’s Whole Person Impairment (WPI) was 0% - plaintiff sought to quash certificate for jurisdictional error - Pt 3.4, ss44, 58, 59, 61, 63, 65, 81, 131, 132 &133 Motor Accidents Compensation Act 1999 (NSW) - doctrine of stare decisis - held: Review Panel’s ultimate finding was that plaintiff’s injury resolved and gave rise to no permanent impairment - nothing to indicate Review Panel did not perform task or failed to have regard to evidence it was obliged to consider - no error in approach to causation - plaintiff did not succeed in challenge on constitutional ground to fact that one assessor on Review Panel had not participated in the examination - making of assessment open to Panel - no error of law on the record or jurisdictional error - summons dismissed.
Mackenzie (I G)
Box Hill Institute of TAFE v Johnson [2015] VSCA 245
Court of Appeal of Victoria
Warren CJ; Hansen & Kaye JJA
Negligence - respondent claimed damages for injuries sustained during course of employment with applicant - applicant claimed he sustained back injury and psychological injury - trial judge upheld respondent’s claim for back injury and awarded damages - trial judge upheld one aspect of claim for psychological injury and awarded him damages totalling $232,000 - applicant sought leave to appeal in respect of decision as to psychological injury - causation - assessment of damages - ‘real prospect of success’ - s14C Supreme Court Act 1986 (Vic) - whether trial judge erred in reaching factual conclusion on basis of which he found in favour of respondent on the issue of liability - held: applicant did not establish prospects of success on grounds of application - application dismissed.
BoxHill (I)
RSPCA v Holdsworth [2015] VSCA 243
Court of Appeal of Victoria
Warren CJ; Hansen & Beach JJA
Negligence - RSPCA negligently destroyed 131 cattle belonging to respondents - respondents claimed damages from RSPCA- County Court judge gave judgment for respondents - assessment of damages in amount of $1,167,000 made up of two components each for loss of profits - first componen for lost profit in relation to stud enterprise - second component for lost profit for artificial insemination business - appellants sought to appeal against assessment of damages - rejection by judge of RSPCA’s financial expert - date of assessment of loss and notional sale issues - average stud prices - discount factor - damages for artificial insemination - held: RSPCA’s appeal had no prospects of success - leave to appeal refused.
Atkinson v Habermann [2015] QSC 262
Supreme Court of Queensland
McMeekin J
Evidence - contract - plaintiff claimed specific performance of contract or damages for breach - contract concerned the taking of millable timber by plaintiff from defendant’s land - plaintiff sought appointment of single expert pursuant to r429I Uniform Civil Procedure Rules 1999 (Qld) and order that expert prepare report “on the issue of millable timber” - interests of justice - held: it was case particularly suited to appointment of single expert - assessment of damages required determination of quantity and value of millable timber - issue of assessment of damages not straight forward - appointment of single expert would probably limit costs - receipt of expert’s report would probably expedite trial if trial necessary - each factor in r429K(1) favoured appointment - single expert appointed.
Atkinson (I B C)
Baxter v Insurance Australia Ltd [2015] ACTSC 273
Supreme Court of the Australian Capital Territory
Mossop AsJ
Damages - motor vehicle accident - appellant injured in motor vehicle accident - appellant appealed from Magistrate’s assessment of damages - s99 Civil Law (Wrongs) Act 2002 (ACT) - adequacy of the award of general damages - adequacy of buffer awarded for future economic loss - manner in which Magistrate dealt with general damages and economic loss - reliability of appellant’s evidence and expert medical opinion - held: Magistrate erred in award of general damages - award for general damages increased - appeal allowed.
Baxter (I)
Baker v Mackenzie [2015] ACTSC 272
Supreme Court of the Australian Capital Territory
Mossop AsJ
Negligence - plaintiff child pedestrian injured in motor vehicle accident when crossing road on her way to school - plaintiff alleged ongoing injury as result of accident - whether driver of vehicle negligent - whether contributory negligence - extent of economic loss from diminution in plaintiff’s capacity for work - ss45 & 102 Civil Law (Wrongs) Act 2002 (ACT) - held Court satisfied failure of driver to sound her horn was breach of duty which caused plaintiff’s injuries - plaintiff failed to pay attention to oncoming vehicles - it must have been obvious there was significant risk vehicles present - there was reasonably available alternative to exposure to risk by use of underpass - actual act which caused damage was plaintiff stepping into side of vehicle - vehicle was object which plaintiff struck rather than object which struck plaintiff - just and equitable to reduce damages recoverable for wrong by 80%.
Baker (I)