| 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.
Coles
[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.
Perisher
[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.
Metaxoulis
[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.
Solarus
[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.
Westpac
[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.
Ireland
[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
|
