Weekly Insurance Law Review: Friday, 17 April 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)
Coles Supermarkets Australia Pty Ltd v Fardous (NSWCA) - negligence - slip and fall at supermarket - erroneous assessment of damages for economic loss - appeal allowed
Perisher Blue Pty Ltd v Nair-Smith (NSWCA) – negligence – skier injured when ski-lift chair struck her – Perisher’s breach of duty did not cause skier’s injuries - appeal allowed
Metaxoulis v McDonald’s Australia Ltd (NSWCA) - negligence - appellant injured in slip and fall after rescuing child from play equipment - McDonalds liable
Solarus Projects Pty Ltd (Receivers and Managers appointed) (in Liquidation) v AAI Limited Trading as Vero Insurance (No 8) (NSWSC)  - insurance - Queensland floods - company was an insured for floods under project contract works insurance policy
Westpac Banking Corporation v Jamieson (QCA) – negligence – damages - investment advice – bank negligent and in breach of contract – appeal and cross-appeals dismissed
Ireland v B & M Outboard Repairs (QSC)- negligence-contract - injuries suffered in fire on boat - breach of duty of care and implied term - outboard repairers liable
Summaries (Five Minute Read) with Link
Coles Supermarkets Australia Pty Ltd v Fardous [2015] NSWCA 82
Court of Appeal of New South Wales
Macfarlan & Emmett JJA; Simpson J
Negligence - occupier’s liability - respondent injured in slip and fall at appellant’s supermarket - primary judge found in respondent’s favour against appellant on liability and awarded damages - appellant challenged awards for past economic loss, future economic loss and future out-of-pocket expenses - whether respondent had any earning capacity at time of accident taking into account earlier work accident - s13 Civil Liability Act 2002 (NSW) - held: primary judge erred in assessment of damages for economic loss - respondent had significant prospect assessed at 65% of obtaining employment of 20 hours per week at rate of $20 per hour - primary judge’s award of damages for past and future economic loss reduced to reflect percentage - no error in assessment of damages for future out-of-pocket expenses - appeal allowed.
[From Benchmark 10 April 2015]
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Court of Appeal of New South Wales
Barrett & Gleeson JJA; Tobias AJA
Negligence – causation - appellant operated ski fields– respondent injured when ski-lift chair struck her – respondent sued appellant for damages and breach of contract – primary judge upheld claim - appellant appealed – held: lift operator’s failure to observe condition of chair as it exited bullwheel constituted  breach of appellant’s duty of care - not open to primary judge to conclude appellant’s breach was necessary condition of occurrence of harm - respondent’s injuries not materialisation of inherent risk  - limitations on damages imposed by Pt 2 were invalid under s109 Constitution - limitations directly inconsistent with right to “full contractual liability” conferred by s74(1) Trade Practices Act 1975 (NSW) (TPA) - ticket contract was for supply of “recreational services” under s68(2) TPA - term of ticket contract which excluded liability for more than personal injury or death was void by operation of s68 TPA – appeal allowed.
[From Benchmark 14 April 2015]
Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95
Court of Appeal of New South Wales
McColl, Basten & Macfarlan JJA
Negligence - child got stuck on playground equipment in McDonald’s restaurant while playing in back area of playground where children were not supposed to play - appellant slipped and fell from height of about two metres after climbing over equipment and rescuing child - appellant suffered aggravation of pre-existing injury to wrist and a minor rib injury-appellant sued McDonalds-primary judge found for McDonalds and undertook hypothetical assessment of damages at $78,911.95 - ss5B, 5D, 13, 16; Pt 8 Civil Liability Act 2002 (NSW) - held: McDonald’s breached duty of care by failing to prevent unauthorised access to back area of playground-causation established - quantification of damages for non-economic loss not manifestly inadequate-damages awarded for past economic loss for period extending beyond initial three months - damages awarded for future economic loss due to appellant’s diminution in ability to pursue full-time employment-allowance awarded for domestic assistance at commercial rates-appeal allowed.
[From Benchmark 15 April 2015]
Solarus Projects Pty Ltd (Receivers and Managers appointed) (in Liquidation) v AAI Ltd Trading as Vero Insurance (No 8) [2015] NSWSC 412
Supreme Court of New South Wales
Campbell J
Insurance - plaintiff sued insurer on policy of Project Contract Works Insurance in relation to works allegedly damaged by flooding during successive cyclone seasons in Queensland in 2008 and 2009 - separate determination whether plaintiff was an “Insured” within meaning of policy at the time each flood occurred - meaning of policy - whether established on balance of probabilities plaintiff was within class covered by extended definition of “Insured” in policy - held: plaintiff was an insured during both floods by operation sub-paragraph (b) of definition of “Insured” in the schedule to the policy.
[From Benchmark 15 April 2015]
Westpac Banking Corporation v Jamieson [2015] QCA 50
Court of Appeal of Queensland
McMurdo P, Morrison JA & Applegarth J
Negligence – investment advice – damages -  primary judge found bank in breach of contract and negligent in provision of investment advice – primary judge also found bank’s conduct misleading or deceptive or likely to mislead or deceive in contravention of s12DA(1) Australian Securities and Investments Commission Act 2001 (Cth) – parties appealed and cross-appealed – held: bank’s appeal against finding of liability in respect of superannuation investment dismissed - respondents’ cross-appeal against decision to limit damages in relation to superannuation fund loan to two years’ interest payments dismissed – first respondent’s cross-appeal concerning methodology to gross-up his net loss dismissed.
[From Benchmark 14 April 2015]
Ireland v B & M Outboard Repairs [2015] QSC 84
Supreme Court of Queensland
North J
Negligence - contract - implied term-defendants were partners in business including maintenance, repair and modification of outboard marine engines-plaintiff claimed he suffered injury including psychiatric illness as a result of fire which broke out when he engaged ignition to start outboard motor of boat in 2006 - defendants had replaced fuel lines of boat and installed electric fuel pump in 2004 - plaintiff claimed fire and injury caused by defendants’ breach of contract and duty of care to him - it was admitted on pleadings defendants obliged under implied term of agreement with plaintiff to act with reasonable skill and care and diligence in performing services under agreement and that defendants owed plaintiff a duty of care to act with reasonable skill, care and diligence - by recommending and installing non-marine grade electric pump defendants breached implied term and duty of care - breaches necessary condition of plaintiff’s injury, loss and suffering - judgment for plaintiff.
[From Benchmark 15 April 2015]
Tall Nettles
By Edward Thomas
TALL nettles cover up, as they have done         
These many springs, the rusty harrow, the plough      
Long worn out, and the roller made of stone:    
Only the elm butt tops the nettles now.   
This corner of the farmyard I like most:            
As well as any bloom upon a flower       
I like the dust on the nettles, never lost  
Except to prove the sweetness of a shower.      
Edward Thomas