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


Thursday, 18 December 2014

Executive Summary (One Minute Read)
Nominal Defendant v Ismail (NSWCA) - negligence - motor vehicle accident - inadmissible evidence - retrial on liability
Zraika by his tutor Zraika v Walsh (NSWSC) - negligence - motor vehicle accident - alleged injury suffered in utero - orders for genetic testing
Zafiriou v Saint-Gobain Administration Pty Ltd (VSCA) - termination of employment contract - entitlement to redundancy payment - fresh evidence - retrial
Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council (QCA) - environment and planning - conviction for depositing “prescribed water contaminant” in stormwater drainage - appeal dismissed
Cowen v Bunnings Group Ltd (QSC) - negligence - employee developed illness after sweeping up fertiliser - causation established - employer liable
Summaries With Link (Five Minute Read)
Nominal Defendant v Ismail [2014] NSWCA 432
Court of Appeal of New South Wales
Basten, Barrett & Emmett JJA
Negligence - motor vehicle accident - Ismail lost control of vehicle and collided with car - Ismail alleged loss of control caused when unidentified sedan made abrupt stop in front of her - truck driver behind Ismail claimed there was no sedan and that accident caused by unidentified semi-trailer attempting to merge - primary judge found there was both sedan and semi-trailer which contributed to accident - primary judge found for Ismail - Nominal Defendant challenged admissibility of traffic engineer's opinion and adequacy of trial judge's findings in reconciling inconsistent accounts of accident - Ismail cross-appealed on assessment of damages - held: report inadmissible as expert evidence as traffic engineer did not profess specialised knowledge in identifying how events perceived and recalled by different persons - approach taken by primary judge to reconcile accounts depended on admissibility of the evidence - finding on liability set aside - retrial ordered on liability
Nominal Defendant
Zraika by his tutor Zraika v Walsh [2014] NSWSC 1774
Supreme Court of New South Wales
Davies J
Negligence - plaintiff diagnosed with microcephaly and developmental delay shortly after birth - plaintiff alleged he was injured by trauma sustained while he was in utero when mother injured in motor vehicle accident - causation - one explanation for plaintiff’s injuries was a genetic cause - defendants sought order for genetic testing - plaintiff opposed genetic testing on basis it would inevitably result in vacating of hearing date - delay - held: Court satisfied there was live issue as to causation of plaintiff’s physical incapacity and intellectual difficulty - Court satisfied that proposed testing had capacity to throw light on the issue - orders for testing made.
Zraika by his tutor Zraika
Zafiriou v Saint-Gobain Administration Pty Ltd [2014] VSCA 331
Court of Appeal of Victoria
Osborn & Whelan JJA; Ginnane AJA
Evidence - contract - appellant formerly employed by respondent - appellant’s employment terminated - appellant claimed entitlement to amount under provision of written contract of employment which provided for a severance payment if his employment was terminated for reasons of redundancy/retrenchment - trial judge concluded employment not terminated for reasons of ‘redundancy/retrenchment’ and that primary claim should be dismissed - critical issue on appeal was whether fresh evidence had rendered trial judge’s conclusions unsafe - held: not realistically possible for Court to form concluded judgment on ultimate probative significance of fresh evidence - fresh evidence raised sufficient basis to require further trial - appeal allowed in part - certain claims dismissed - matter otherwise remitted for further hearing by different judge of trial division.
Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QCA 333
Court of Appeal of Queensland
Holmes & Muir JJA; McMeekin J
Environment and planning - applicant convicted by magistrate of unlawfully depositing a “prescribed water contaminant” in stormwater drainage contrary to s440ZG Environmental Protection Act 1994 (Qld) - primary judge dismissed appellant’s appeal against conviction - applicant sought leave to appeal - held: applicant did not have any prospect of demonstrating error in primary judge’s conclusion - on evidence adduced, no reasonable possibility consistent with innocence remained - evidence supported finding as to water’s contamination did not leave open other rational possibilities - leave to appeal refused.
Palmgrove Holdings Pty Ltd
Cowen v Bunnings Group Ltd [2014] QSC 301
Supreme Court of Queensland
A Wilson J
Negligence - causation - plaintiff employed by defendant - plaintiff sued defendant for illness she developed after sweeping up fertiliser - employer admitted breach of duty and that it was foreseeable that work she performed might cause her injury - however employer denied breaches caused plaintiff’s serious illness - employer claimed illness coincidental with work she did - medical evidence - close relation in time between exposure and development of illness - held: Court satisfied work exposed plaintiff to large amount of dust which seriously aggravated her upper respiratory tract - there was causal connection between irritation of plaintiff’s respiratory mucosa and subsequent grave illness - judgment for plaintiff.