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

Weekly Insurance Law Review

Friday, 19 September 2014
Executive Summary (One Minute Read)
Curtis v Harden Shire Council (NSWCA) - negligence - driver killed - car ran into tree - Council breached duty - causation - appeal allowed
Hannover Life Re of Australasia Ltd v Colella (VSCA) - insurance - insurer required to pay total and permanent disablement benefit - appeal dismissed
Green v ESTA (VSCA) - accident compensation - allegations by counsel of concoction and collusion - miscarriage of justice - retrial
Powney v Kerang and District Health (VSCA) - medical negligence - jury's role properly confined to determination of factual causation - appeal dismissed
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd (QCA) - negligence - time that economic loss was suffered due to cracks in building was not so clear as to justify summary judgment on basis claim was statue barred
Queensland v Munro (QCA) - negligence - nurse injured during aggressive behaviour management course - employer liable - appeal dismissed
Gelencser v Lucas; Gelencser v Ash (ACTSC) - two motor vehicle accidents - drivers with same insurer admitted liability - damages apportioned equally to both accidents
Summaries With Link (Five Minute Read)
Curtis v Harden Shire Council [2014] NSWCA 314
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & Basten JA
Negligence - appellant's partner fatally injured when car she was driving ran off road and hit tree - at time of accident, Council carrying out roadworks where accident occurred - appellant claimed damages for psychiatric injury arising from death and damages under Compensation to Relatives Act 1897 (NSW) - appellant claimed accident caused by loose gravel on road surface and that Council was negligent in failing to provide adequate signage to indicate road had been resurfaced and motorists should reduce speed - primary judge dismissed both claims - held: s43A Civil Liability Act 2002 (NSW) was engaged as failure to erect signage involved exercise of special statutory power - expert evidence established that failure to include signage indicating road was slippery and that motorists should reduce speed was decision no body with special statutory powers in question could reasonably have made in the circumstances - trial judge erred in finding causation was not established on balance of probabilities - appeal allowed.
Curtis
[From Benchmark 12 September 2014]
Hannover Life Re of Australasia Ltd v Colella [2014] VSCA 205
Court of Appeal of New South Wales
Ashley & Beach JJA; Garde AJA
Insurance - claimant left employment as result of knee condition - claimant was member of superannuation fund with total and permanent disablement (TPD) benefit provided by appellant insurer - company was trustee of superannuation fund - claimant claimed on policy for TPD benefit - insurer rejected all claims - County Court judge ordered insurer to pay trustee the TPD benefit - insurer appealed - construction of policy - assessment of evidence - held: trial judge correct to hold that claimant satisfied first and second limbs of TPD definition - trial judge applied incorrect test in relation to first limb of TPD definition, but, if trial judge had applied correct test, result would have been the same - insurer did not act reasonably and fairly in decisions to disallow claim - no error in award of interest or costs - appeal dismissed - application for leave to appeal as to costs dismissed.
Hannover Life Re of Australasia Ltd
[From Benchmark 12 September 2014]
Green v ESTA [2014] VSCA 207
Court of Appeal of Victoria
Ashley, Priest & Santamaria JJA
Accident compensation - appellant sued employer claiming that she was injured in course of employment as result of employer's negligence or breach of statutory duty - appellant alleged injury was result of excessive work-load undertaken on Black Saturday in unsatisfactory working conditions - jury of six returned verdict for employer - appellant sought to set aside jury's verdict and sought order for retrial - held: counsel's serious allegations of concoction and collusion against solicitor and appellant not justified by material in his hands - allegation was thrust of cross-examination - accusation of collusion to concoct bogus history had manifest potential to poison appellant's case - conduct of respondent's trial counsel caused irreparable damage to appellant's case - there had been a substantial miscarriage of justice - demands of justice warranted an order for a retrial.
Green
[From Benchmark 15 September 2014]
Powney v Kerang and District Health [2014] VSCA 221
Court of Appeal of Victoria
Osborn & Beach JJA; Forrest AJA
Negligence - causation - appellant sued District Health in relation to treatment received at hospital - appellant claimed he was given injection with unsterile needle resulting in infection - appellant claimed hospital staff failed to respond to complaints of pain said to be the consequence of infection - trial judge ruled jury was confined to determining factual causation under s51(1) Wrongs Act 1958 (Vic) of the Act and not causation under s51(2) - jury found for District Health - appellant appealed - application of evidentiary gap provision in s51(2) - held: trial judge correct in refusing to permit jury to consider requirements of s51(2) - appropriate to direct jury to determine only the issue of factual causation - appeal dismissed.
Powney
[From Benchmark 16 September 2014]
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233
Court of Appeal of Queensland
M McMurdo P, Holmes JA & A Lyons J
Limitation of actions - negligence - latent defect - respondent claimed engineering consultants breached duty of care - failed to specify design for lower slab of building which could tolerate ground heave - s10 Limitation of Actions Act 1974 (Qld) - claim statute barred if cause of action arose before 2005 - cracks first appeared in 2003 - primary judge refused consultants' application for summary judgment - primary judge held determination of start of limitation period was not simply a matter of identifying when cracking first appeared - further questions for investigation - conflicting evidence - held: consultants required to establish limitation defence was so clear that respondent had no real prospect of succeeding - consultants had not demonstrated unequivocally that the respondent had suffered economic loss from the alleged faulty design when it became aware the cracking in 2003 - primary judge correctly dismissed application for summary judgment - appeal dismissed.
Melisavon Pty Ltd
[From Benchmark 18 September 2014]
Queensland v Munro [2014] QCA 231
Court of Appeal of Queensland
M McMurdo P, Muir JA & P Lyons J
Negligence - respondent nurse was on third day of aggressive behaviour management course - nurse injured when attempting a manoeuvre under instruction - nurse sued Queensland for negligence and breach of statutory duty - primary judge found risk could have been minimised by teaching the different parts of the manoeuvre separately before combining them - primary judge gave judgment for nurse in District Court proceedings - Queensland sought leave to appeal - Queensland contended techniques were split up and taught in different parts separately before they were combined - held: primary judge's findings of fact not glaringly improbable or contrary to compelling inferences - no error in finding of breach of duty of care by failure to provide proper training and instruction - interests of finality and justice rendered ground of appeal on causation unmeritorious - causation was not an issue at trial - no reliance on inadmissible evidence - applicant did not identify any substantial injustice which ought to be corrected - no reasonable argument there was error to be corrected - leave to appeal refused - leave to appeal against costs order refused.
Queensland
[From Benchmark 18 September 2014]
Gelencser v Lucas; Gelencser v Ash [2014] ACTSC 207
Supreme Court of the Australian Capital Territory
Burns J
Damages - negligence - two proceedings - in first accident, plaintiff was driver of a motor vehicle which was involved in a collision with motor vehicle driven by the defendant - in second accident, plaintiff was driver of motor vehicle which was involved in collision with another motor vehicle driven by defendant - plaintiff claimed damages - defendants admitted liability for accidents - claims proceeded as assessments of damages - held: attempting to attribute fixed proportions of plaintiff's current symptoms and disabilities to one or other of the accidents was a highly artificial exercise which was not required as both defendants had the same insurer - damages apportioned equally to both accidents - damages assessed.
Gelencser
[From Benchmark 15 September 2014]

From: 'Spring Day'
by Amy Lowell

      Midday and Afternoon
  Swirl of crowded streets. Shock and recoil of traffic. The stock-still brick façade of an old church, against which the waves of people lurch and withdraw. Flare of sunshine down side-streets. Eddies of light in the windows of chemists’ shops, with their blue, gold, purple jars, darting colours far into the crowd. Loud bangs and tremors, murmurings out of high windows, whirring of machine belts, blurring of horses and motors. A quick spin and shudder of brakes on an electric car, and the jar of a church-bell knocking against the metal blue of the sky. I am a piece of the town, a bit of blown dust, thrust along with the crowd. Proud to feel the pavement under me, reeling with feet. Feet tripping, skipping, lagging, dragging, plodding doggedly, or springing up and advancing on firm elastic insteps. A boy is selling papers, I smell them clean and new from the press. They are fresh like the air, and pungent as tulips and narcissus.
  The blue sky pales to lemon, and great tongues of gold blind the shop-windows, putting out their contents in a flood of flame.
Amy Lowell