Weekly Insurance Law Review: Friday, 19 June 2015 View in browser
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A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Insurance Law Review

Executive Summary (One Minute Read)
King v Philcox (HCA) - negligence - respondent’s brother killed in motor vehicle collision due to appellant driver’s negligence - respondent not present at scene of accident when it occurred within meaning of s53(1)(a) Civil Liability Act 1936 (SA) - respondent not entitled to damages for mental harm - appeal allowed
Isbester v Knox City Council (HCA) - administrative law - bias - natural justice - decision ordering appellant’s dog to be destroyed quashed - appeal allowed
Fabre v Lui (NSWCA) - negligence - appellant lessee of premises injured when rangehood fell on her - rangehood installed by handyman employed by respondent landlord - landlord not liable
Drew v State of NSW (NSWCA) - negligence - cleaner injured in fall at school in course of work - employer and State not liable
Tilden v Gregg (NSWCA) - negligence - appellant punched in face at bowling club - occupier and licensee not negligent - challenge to assessment of damages failed - appeal dismissed
Chong & Neale v CC Containers Pty Ltd (VSCA) - conspiracy to injure corporations - fraud - appeal allowed in part in relation to award of interest - appeal otherwise dismissed
Srbinovski v Americold Logistics Ltd (VSCA) - negligence - jury verdict - credit - appeal against jury’s assessment of pain and suffering damages dismissed
Slaveska v State of Victoria (VSCA) - limitation of actions - summary judgment - abuse of process - appeal allowed in part
King v Allianz Australia Insurance Ltd (QCA) - costs - appeal against review of costs assessment allowed - costs assessor’s certificate reinstated
Boon v Summs of Qld Pty Ltd t/a Big Bill’s Bobcats (QSC) - negligence - plaintiff stabbed in hand with Leatherman knife by defendant’s employee during lunchbreak - neither employee nor defendant liable
C.A.R.S. Pty Ltd v Brent (TASSC) - guarantee and indemnity - claim by creditor against two guarantors - one guarantor failed to sign and signature forged - other guarantor not relieved of liability
Associated Forest Holdings Pty Ltd v Gordian Runoff Ltd (TASFC) - insurance - workers compensation - reinsurer not obliged to make payments under reinsurance policy - appeal dismissed
Teoh v Greenway (ACTSC) - limitations - negligence - motor vehicle accident - evidence of settlement offer inadmissible - summary judgment for appellant
Summaries With Link (Five Minute Read)
King v Philcox [2015] HCA 19
High Court of Australia
French CJ; Kiefel, Gageler, Keane & Nettle JJ
Negligence - mental harm - respondent’s brother was passenger in a motor vehicle driven by appellant - as result of appellant’s negligence vehicle collided with another vehicle - respondent fatally injured and died while trapped in vehicle - respondent heard about accident and realised that he had driven past accident location earlier that day while vehicle still there - respondent developed major depressive disorder - appellant found liable to pay respondent damages for mental harm - ‘present at the scene of the accident when the accident occurred’ - s53 Civil Liability Act 1936 (SA) - held: Full Court of the Supreme Court of South Australia did not err in finding that a duty of care existed, but Full Court erred in holding respondent was present at the scene of the accident when accident occurred within meaning of s53(1) - respondent not entitled to recover damages for mental harm -  appeal allowed.
[From Benchmark Thursday, 11 June 2015]
Isbester v Knox City Council [2015] HCA 20
High Court of Australia
Kiefel, Bell, Gageler, Keane & Nettle JJ
Administrative law - bias - natural justice following hearing by Knox Domestic Animals Act Committee of Knox City Council decision made that appellant’s dog be destroyed -  Council empowered to destroy a dog where its owner has been found guilty of an offence under s29 Domestic Animals Act 1994 (Vic) - appellant had been convicted of offence under s29(4) on plea of guilty to charge that dog had attacked a person and caused "serious injury" - whether decision should be quashed because of substantial involvement of member of Committee both in prosecution of charges concerning the dog and decision as to fate of dog - s84P - held: fair-minded observer might reasonably apprehend that member might not have brought an impartial mind to decision under s 84P - natural justice required member not participate in decision - as member had participated in decision, decision must be quashed - appeal allowed.
[From Benchmark Thursday, 11 June 2015]
Fabre v Lui [2015] NSWCA 157
Court of Appeal of New South Wales
Basten, Macfarlan & Meagher JJA
Negligence - occupier’s duty of care - appellant was lessee of rented premises - appellant injured when range-hood fell on her - appellant sued lessor/landlord who had employed tradesman/handyman to do installation - not in dispute installation negligent - not in dispute tradesman  independent contractor for whose negligence landlord not vicariously liable - appellant claimed landlord failed to make appropriate inquiries about installer sufficient to establish competence - appellant contended landlord breached duty of care toward any person who might in future occupy premises - not in dispute landlord owed duty of care to such persons - whether landlord negligent in engaging tradesman to install equipment - ss5B, 5B(1), 5B(2), 5B(2)(a), 5B(2)(b), 5B(2)(c) & 5B(2)(d) Civil Liability Act 2002 - s25 Residential Tenancies Act 1987 - held: appellant did not demonstrate reasonable person in landlord’s position would have taken any particular precautions or that such precautions if taken would reasonably have required engagement of someone with better qualifications - appeal dismissed.
[From Benchmark Thursday, 11 June 2015]
Drew v State of NSW [2015] NSWCA 159
Court of Appeal of New South Wales
McColl, Ward & Leeming JJA
Negligence - cleaner employed by second respondent fell and injured herself at work at school - cleaner sued State as occupier of school and on basis it was vicariously liable for tortious conduct of school staff, and sued employer for workplace injury - primary judge dismissed both claims finding no breach of duty and that causation not established in claim against State - ss5B-5E Civil Liability Act 2002 - held: no breach of procedural fairness - no deficiency of reasons or appellable error through failure to refer to evidence - no error in dismissal of claim against employer and State - appeal dismissed.
[From Benchmark Friday, 12 June 2015]
Tilden v Gregg [2015] NSWCA 164
Court of Appeal of New South Wales
McColl, Macfarlan & Meagher JJA
Negligence - appellant punched in face by first respondent at bowling club - appellant commenced proceedings against first respondent for assault and against second respondent occupier and licensee of premises in negligence - appellant obtained summary judgment against first respondent - primary judge dismissed claim against second respondent - appellant challenged finding of no liability in second respondent’s favour and assessment of damages against respondents - ss3B, 5B, 5D & 15  Civil Liability Act 2002 - held: no error in finding that occupier and licensee not negligent - challenge to findings on causation and assessment of damages failed - appeal dismissed.
[From Benchmark Wednesday, 17 June 2015]
Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137
Court of Appeal of Victoria
Redlich, Santamaria & Kyrou JJA
Conspiracy to injure corporations - fraud - company (CCC) owned and controlled by appellant (Chong) and son stored and repaired shipping containers owned by respondent shipping company - appellant (Neale) was director of shipping company - appellants found to have conspired to injure respondents by fraud perpetrated in respect of repair by CCC of shipping containers of shipping company - appellants also found to have engaged in fraudulent misrepresentation and misleading and deceptive conduct - Neale found to have breached his fiduciary and statutory duties as director of shipping company and CCC and to have received secret commissions as result of his participation in repair fraud and involvement in sale of CCC’s business - held: grounds of appeal failed - Chong’s appeal allowed in part in relation to amount of interest awarded - Neale’s appeal dismissed.
[From Benchmark Thursday, 11 June 2015]
Srbinovski v Americold Logistics Ltd [2015] VSCA 139
Court of Appeal of Victoria
Warren CJ; Tate JA & Digby AJA
Negligence - jury verdict - appellant commenced action for pain and suffering damages as result of injury sustained while working for respondent - appellant alleged injuries caused by respondent’s negligence - jury returned verdict in appellant’s favour for $50,000 - judgment entered for appellant for $50,000 for pain and suffering and loss of enjoyment of life - trial judge pursuant to s 134AB Accident Compensation Act 1985 varied orders, reducing damages for pain and suffering to nil and ordered judgment for respondent - appellant contended jury’s assessment of pain and suffering damages manifestly inadequate - held: appellant failed to show, taking evidence most favourable to respondent, that no reasonable jury could have assessed general damages at $50,000 -  sufficient medical evidence to undermine severity of injury - open to respondent to attack appellant’s credit - errors or stated inaccuracies in respondent’s closing address adequately remedied both by withdrawal and a direction by trial judge - appeal dismissed.
[From Benchmark Friday, 12 June 2015]
Slaveska v State of Victoria [2015] VSCA 140
Court of Appeal of Victoria
Warren CJ, Tate & Ginnane AJA
Limitation of actions - summary judgment - appellant’s husband sued State and police officers arising out of 13 alleged incidents - claims of assault and battery, false imprisonment, malicious prosecution, defamation, trespass, conversion, detinue and negligence -  all claims dismissed except trespass - appellant filed notice of appeal on behalf of husband - appeal dismissed for want of prosecution - wife commenced own proceeding against State and police officers - respondents sought summary dismissal or striking out of many claims - associate judge refused extension of time to prosecute claims and granted summary judgment in respect of claims regarding incidents on basis that they were not brought within time - appellant appealed - held: appeal grounds rejected except insofar as Court found appellant brought certain claims partly within time - Court dismissed surviving claims which arose from incidents subject of husband’s proceeding as abuse of process - appeal allowed in part.
[From Benchmark Friday, 12 June 2015]
King v Allianz Australia Insurance Ltd [2015] QCA 10
Court of Appeal of Queensland
Philippides JA; Mullins & Burns JJ
Costs - motor vehicle accident - costs assessment - appellant suffered whiplash in motor vehicle accident - claim settled - respondent sought review of costs assessment pursuant to r742 Uniform Civil Procedure Rules 1999 - review successful in respect of two complaints - appellant sought that respondent’s application for review be dismissed so that position prior to primary judge’s decision restored - whether basis on which primary judge excluded costs associated with doctor’s report was anticipated by respondent’s objection before costs assessor - whether ground before primary judge that costs assessor’s reasons for not reducing care and consideration were inadequate - held: primary judge should not have allowed review in respect of objection concerning costs associated with doctor’s report or reduced amount for care and consideration - appeal allowed - costs assessor’s certificate reinstated.
[From Benchmark Tuesday, 16 June 2015]
Boon v Summs of Qld Pty Ltd t/a Big Bill’s Bobcats [2015] QSC 162
Supreme Court of Queensland
A Lyons J
Negligence - plaintiff stabbed in hand with Leatherman knife by defendant’s employee during lunch break at construction site - plaintiff employed by company (Globe) which was contracted by another company (Downer) to provide workers at construction site controlled and monitored by Downer - defendant company was subcontracted by Downer to remove and replace asphalt at construction site - plaintiff sued defendant company for breach of duty to take reasonable care not to expose him to a foreseeable risk of injury and/or claimed defendant vicariously liable for employee’s negligent acts - s9, 59, 61 & 62 Civil Liability Act 2003 (Vic) - s6, Sch 4 & Sch 6A Civil Liability Regulation 2003 - held: not established defendant’s employee was negligent - Court not satisfied  reasonable employer in position of defendant company would have taken steps argued by plaintiff to avoid the risk of injury - judgment for defendant.
[From Benchmark Tuesday, 16 June 2015]
C.A.R.S. Pty Ltd v Brent [2015] TASSC 23
Supreme Court of Tasmania
Blow CJ
Guarantee and indemnity - creditor sued two company directors claiming they were liable to pay sums pursuant to deed of guarantee and indemnity  - first defendant contended he was not liable because signature on deed forged - second defendant admitted signing deed but contended other defendant’s signature was forged which must result in him not being liable - held: Court not satisfied first defendant executed deed or authorised anyone else to do so in his name - plaintiff’s claim against first defendant failed - deed contained express term that liability of each guarantor was not contingent upon execution of guarantee by any other guarantor - second defendant not relieved from liability under guarantee - claim against second defendant succeeded.
[From Benchmark Thursday, 11 June 2015]
Associated Forest Holdings Pty Ltd v Gordian Runoff Ltd [2015] TASFC 6
Full Court of the Supreme Court of Tasmania
Blow CJ; Porter & Wood JJ
Insurance - limitation of actions - worker injured in accident while working as tree feller - employer (AFH) was self-insurer pursuant to exemption under Workers Compensation Act 1927 (Tas) - AFH and company of which it was a subsidiary (North) entered reinsurance agreement which purportedly provided that once employer reached threshold of $1 million in respect of loss to which policy related, it could look to the reinsurer for liability in excess of amount - appellants brought an action against reinsurer contending threshold of $1,000,000 passed and claiming damages for breach of contract on basis reinsurer refused to pay money that were due to them pursuant to policy by way of indemnity in respect of sums paid to worker and for his benefit - action failed - held: grounds of appeal failed -  North had no claim against reinsurer under the policy - worker not a party to the policy - policy made no provision for any payments to be made to worker but provided only for the reimbursement of sums paid by others - no appellants entitled to recover any sums from - reinsurer - learned trial judge correct to give judgment for reinsurer though she erred in reasoning - appeal dismissed.
[From Benchmark Friday, 12 June 2015]
Teoh v Greenway [2015] ACTSC 133
Supreme Court of the Australian Capital Territory
Burns J
Negligence - respondent injured in motor vehicle accident - insurer admitted liability for accident - respondent claimed damages for personal injury arising out of accident - appellant claimed proceedings statute-barred by s16B Limitation Act 1985 (ACT) - appellant sought summary judgment - respondent sought to lead evidence before Master of settlement offers made by appellant - appellant conceded that if evidence admissible, offer would constitute confirmation of respondent’s cause of action so that limitation period did not expire until after commencement of proceedings - Master ruled evidence admissible - whether Master erred in interpreting s131(2) Evidence Act 2011 (ACT) - whether Master erred in finding settlement offer relevantly affected right of respondent under s 131(2) - held: Court satisfied order of Master admitting evidence of settlement offer made by and dismissing application for summary judgment should be set aside - summary judgment entered for appellant.
[From Benchmark Monday, 15 June 2015]
By James Joyce

My love is in a light attire
     Among the apple trees,
Where the gay winds do most desire
     To run in companies.

There, where the gay winds stay to woo
     The young leaves as they pass,
My love goes slowly, bending to
     Her shadow on the grass.

And where the sky’s a pale blue cup
     Over the laughing land,
My love goes lightly, holding up
     Her dress with dainty hand.