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

Weekly Insurance Law Review

Friday, 21 November 2014

Executive Summary (One Minute Read)
Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon (HCA) - negligence - mentally ill man killed friend after discharge from hospital - health authority not liable for relatives' psychiatric injury
Eptec Pty Ltd v Alaee (NSWCA) - negligence - motor accidents compensation - worker's injuries not caused by driving of vehicle - employer not liable
Liverpool Catholic Club Ltd v Moor (NSWCA) - negligence - ice-skater injured in fall on stairs while wearing boots - occupier not liable
Rutland v Allianz Australia Insurance Ltd (NSWSC) - motor accidents compensation - psychiatric injury - decision of Medical Review Panel set aside
Fisher v Channel Seven Sydney Pty Ltd (No 4) (NSWSC) - defamation - special jury verdict - assessment of damages
Huni v Allianz Australia Insurance Ltd (NSWSC) - motor accidents compensation - Proper Officer erred in refusing to grant review of medical assessment 
Summaries With Link (Five Minute Read)
Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44
High Court of Australia
French CJ; Hayne, Bell, Gageler & Keane JJ
Negligence - mentally ill man from Victoria involuntarily detained in hospital under Mental Health Act 1990 (NSW) - after doctor reviewed medical history, spoke with mentally ill man, friend and mother in Victoria, it was agreed mentally ill man would be kept in hospital overnight and that friend would drive him back to mother's home in Victoria where he would receive continuing medical treatment - in course of journey, mentally ill man killed friend - relatives sued health authority in negligence for psychiatric injury - NSW District Court found there was no breach of duty of care and entered judgment for the health authority - Court of Appeal set aside decision - held: hospital and doctor did not owe alleged common law duty of care to friend's relatives - Mental Health Act prohibited detention, or continuation of detention, of mentally ill person unless medical superintendent of hospital formed opinion that no other less restrictive care was appropriate and reasonably available - performance of that statutory obligation would not be consistent with duty of care alleged by relatives of friend - appeals allowed.
Hunter and New England Local Health District
[From Benchmark 14 November 2014]
Eptec Pty Ltd v Alaee [2014] NSWCA 390
Court of Appeal of New South Wales
McColl & Macfarlan JJA; Sackville AJA
Negligence - motor accidents compensation - worker and co-worker inside bucket of cherry picker - co-worker operating cherry picker - worker injured when bucket began to shake causing him to collide with pipe - primary judge found worker's injuries were within s3A(1) Motor Accidents Compensation Act 1999 (NSW) and thus employer was liable in negligence - employer contended primary judge erred in holding it was liable, or that the award of damages for past and future economic loss was excessive and should be set aside - held: primary judge erred in finding worker's injuries were the result of and caused during the driving of the cherry picker - requirements of s3A(1) not satisfied - appeal allowed.
Eptec Pty Ltd
[From Benchmark 18 November 2014]
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
Court of Appeal of New South Wales
Meagher & Emmett JJA; Tobias AJA
Negligence - respondent attended ice rink located in sporting complex occupied by appellant - respondent wearing skating boots hired from occupier - respondent injured when he fell on stairs providing access to rink - primary judge found occupier negligent in failing to take reasonable precautions against risk of injury from slipping or falling when descending wet stairs whilst wearing skates - held: - primary judge erred in not finding that risk of harm was "obvious" within the meaning of s5F Civil Liability Act 2002 (NSW) - each of the two warnings which primary judge held would have been sufficient to discharge occupier's duty of care were forms of warning of a risk of injury in descending stairs with skating boots on - that risk was an obvious risk within s 5F(1) - effect of s5H(1) was that appellant did not owe duty of care to the respondent to warn of obvious risk - appeal allowed.
Liverpool Catholic Club
[From Benchmark 20 November 2014]
Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583
Supreme Court of New South Wales
Garling J
Motor accidents compensation - plaintiff’s younger sister killed in motorcycle accident - plaintiff sued insurer for psychiatric injury and nervous shock - plaintiff challenged decision of Medical Review Panel to set aside medical Assessor’s certificate and certify that plaintiff’s whole person impairment was not greater than 10% - held: Review Panel failed to discharge its statutory function pursuant to s63 Motor Accidents Compensation Act 1999 (NSW) because it failed to assess all matters afresh in respect of the plaintiff's whole person impairment - Review Panel failed to cause enquiries to be made of claimant as to what her job duties actually involved - Review Panel failed to accord procedural fairness to claimant - certificate of Review Panel set aside.
[From Benchmark 19 November 2014]
Fisher v Channel Seven Sydney Pty Ltd (No 4) [2014] NSWSC 1616
Supreme Court of New South Wales
Rothman J
Defamation - damages - plaintiff sued defendants for damages arising from broadcast of segment on television program which accused him of misconduct as a driver of a bus carrying school children - jury returned special verdict that two imputations proved true and five further imputations not proved true - jury determined untrue imputations had effect of defaming plaintiff, despite damage to reputation arising from truth of the two other imputations - assessment of damages in conformity with jury verdict - held: evidence demonstrated broadcast could be considered to have been published to world at large, and plaintiff was entitled to be compensated for that - damages sufficient to compensate fully without need for aggravated damages.
[From Benchmark 19 November 2014]
Huni v Allianz Australia Insurance Ltd [2014] NSWSC 1584
Supreme Court of New South Wales
Garling J
Judicial review - motor accidents compensation - permanent impairment - plaintiff injured in motor vehicle accident - plaintiff challenged Proper Officer's decision to refuse her application for review of a medical assessment on basis he was not satisfied that there was reasonable cause to suspect that medical assessment was incorrect in a material respect - plaintiff submitted medical assessor erred because she did not proceed in accordance with Guidelines to make clinical assessment of impairment of left upper limb on all available evidence - plaintiff submitted that error was so obvious that Proper Officer could only have concluded that he had reasonable suspicion of material error in accordance with s63 Motor Accidents Compensation Act 1999 (NSW) -.held: Court satisfied Proper Officer erred in failing to have reasonable suspicion that medical assessor had fallen into error - whole person assessment of plaintiff undertaken by medical assessor was erroneous and in a material respect - Proper Officer ought to have referred matter to a review panel for a further medical assessment - decision of Proper Officer set aside.
[From Benchmark 18 November 2014]

The Snow-Storm
By Ralph Waldo Emerson

Announced by all the trumpets of the sky,
Arrives the snow, and, driving o'er the fields,
Seems nowhere to alight: the whited air
Hides hills and woods, the river and the heaven,
And veils the farmhouse at the garden's end.
The steed and traveler stopped, the courier's feet
Delayed, all friends shut out, the housemates sit
Around the radiant fireplace, enclosed
In a tumultuous privacy of storm.

Come see the north wind's masonry
Out of an unseen quarry evermore
Furnished with tile, the fierce artificer
Curves his white bastions with projected roof
Round every windward stake, or tree, or door.
Speeding, the myriad-handed, his wild work
So fanciful, so savage, nought cares he
For number or proportion. Mockingly,
On coop or kennel he hangs Parian wreaths;
A swan-like form invests the hidden thorn;
Fills up the farmer's lane from wall to wall,
Maugre the farmer's sighs; and, at the gate,
A tapering turret overtops the work.
And when his hours are numbered, and the world
Is all his own, retiring, as he were not,
Leaves, when the sun appears, astonished Art
To mimic in slow structure, stone by stone,
Built in an age, the mad wind's night-work,
The frolic architecture of the snow.

Ralph Waldo Emerson