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

Weekly Insurance Law Review

Monday, 23 February 2015

Executive Summary (One Minute Read)
Allianz Australia Insurance Ltd v Pomfret (NSWCA) - workers compensation - dust diseases - arguable case insurer liable to indemnify employer for its liability to worker
White v Johnston (NSWCA) - assault and battery - dentist’s treatment was not assault on patient - matter remitted confined to alternative negligence claim
Wilkinson v C & M Leussink Pty Ltd (NSWSC) - workers compensation - judicial review - jurisdictional error - decisions of Medical Appeal Panel quashed
Smith v Marshall [No 2] (WASC) - defamation - impugned imputations struck out
Stewart v Ackland (ACTCA) - negligence - student injured performing backward somersault on jumping pillow on farm – occupiers of farm who conducted amusement park business liable - appeal dismissed
McFadyen v Jenson (ACTSC) - motor vehicle accident - liability admitted - credit - medical evidence - damages assessed
Compass Group Healthcare Hospitality Service Pty Ltd v Beaton (ACTSC) - workers compensation - worker’s mental injury caused by employer’s unreasonable conduct - appeal dismissed
Summaries With Link (Five Minute Read)
Allianz Australia Insurance Ltd v Pomfret [2015] NSWCA 4
Court of Appeal of New South Wales
Beazley P; McColl, Basten, Macfarlan & Meagher JJA
Workers compensation - insurance - employer’s liability for occupational disease - worker employed by company (Ceeco) in 1974 - worker employed by Ceeco again from early 1976 until 23/12/78 - worker exposed to asbestos dust and fibre during periods - up to 31/1/78, contract of insurance between Allianz and Ceeco indemnified Ceeco against liability as employer during policy period. - Ceeco deregistered - worker sued Allianz for compensation for asbestosis and related diseases - Allianz contended relevant disease under s151AB(1) Workers Compensation Act 1987 (NSW)  was asbestosis and that it was not liable because worker employed by Ceeco until 23/12/78 - when worker ‘last employed’ in conditions to nature of which occupational disease due Allianz claimed it was not ‘on risk’ - divisible or indivisible harm or injury - held: purpose of s151AB was to identify insurer liable to indemnify employer liable for occupational disease of gradual onset contracted over period of employment involving exposure to relevant harmful conditions - must be established that period of exposure caused or substantially contributed to harm subject of claim -  primary judge correctly concluded there was arguable case Allianz liable to indemnify Ceeco in respect of claimed liability to worker - appeal dismissed.  
Allianz Australia Insurance Ltd
[From Benchmark 16 February 2015]
White v Johnston [2015] NSWCA 18
Court of Appeal of New South Wales
Barrett, Emmett & Leeming JJA
Assault and battery - respondent patient alleged appellant dentist’s treatment constituted assault and was negligently performed - primary judge found dentist had committed assault and battery on patient - dentist contended evidence did not establish absence of therapeutic purpose in treatments she performed, that primary judge erred in relying on evidence admitted to demonstrate tendency to charge for services not performed, and in waiving notice requirement - appellant also contended exemplary damages were excessive - held: evidence did not establish absence of therapeutic purpose - awarding of damages in error - decision to admit evidence relating to malpractice overturned - matter remitted to District Court confined to alternative claim in negligence.
[From Benchmark 20 February 2015]
Wilkinson v C & M Leussink Pty Ltd [2015] NSWSC 69
Supreme Court of New South Wales
Harrison AsJ
Workers compensation - judicial review - plaintiff sought to quash decisions of Medical Appeal Panel to revoke medical assessment certificate and to refuse to reconsider its earlier decision - held: Appeal Panel did not exceed its jurisdiction - Appeal Panel did not misconstrue its jurisdiction under s328(2) Workplace Injury Management and Workers Compensation Act 1998 (NSW) by conducting a de novo review - Appeal Panel considered impairment to plaintiff’s right leg not due to work-related injury but rather to underlying arthritic condition - Appeal Panel made findings as to causation and in doing so purported to exercise statutory function it did not have - Panel failed to address s323 concerning assessment of permanent impairment amounted to error - jurisdictional error - plaintiff denied procedural fairness - decisions quashed.
[From Benchmark 20 February 2015]
Smith v Marshall [No 2] [2015] WASC 62
Supreme Court of Western Australia
K Martin J
Pleadings - defamation - action arising out of publication to Australian Shareholders’ Association as well as three other persons by open letter - defendants challenged natural and ordinary meaning imputations in plaintiff’s amended statement of claim - popular or false innuendos - defendants claimed imputations were manifestly groundless or untenable meanings, and that they were also embarrassing - held: three of four impugned imputations struck out.
[From Benchmark 19 February 2015]
Stewart v Ackland [2015] ACTCA 1
Court of Appeal of New South Wales
Penfold J; Walmsley & Robinson AJJ
Negligence - appellants were owner/occupiers of farm on which they conducted business involving amusement park - respondent university student injured when performing aerial backward somersault on jumping pillow owned by owner/occupiers - trial judge found owner/occupiers liable for respondent’s injuries - held: trial judge correctly decided activity in which respondent was engaged when injured was a dangerous recreational activity - no error in finding that risk was not obvious - open to trial judge to find breach of duty by appellants and that causation established - appeal dismissed.
[From Benchmark 17 February 2015]
McFadyen v Jenson [2015] ACTSC 12
Supreme Court of the Australian Capital Territory
Burns J
Damages - negligence - plaintiff was driving motor vehicle which was stationary in traffic when vehicle driven by first defendant collided with rear of plaintiff’s vehicle - second defendant was first defendant’s third party insurer - plaintiff injured as result of collision - extent of injury in dispute - defendants admitted liability - assessment of damages - medical evidence - credit - held: plaintiff was honest witness - damages assessed at $104,447.95 - judgment for plaintiff.
[From Benchmark 19 February 2015]
Compass Group Healthcare Hospitality Service Pty Ltd v Beaton [2015] ACTSC 18
Court of Appeal of the Australian Capital Territory
Burns J
Workers compensation - worker sued appellant for mental injury arising out of or in course of her employment with the appellant - appellant claimed any injury sustained by worker was result of reasonable action taken by it in relation to disciplining worker -  Magistrate found appellant’s unreasonable conduct in meeting cause worker’s injury - appellant appealed - ss4, 31(1) & 197 Workers Compensation Act 1951 (ACT) - held: no failure to make findings as to content of discussion at meeting between worker and appellant’s human resources manager - no failure to make finding as to worker’s emotional state during meeting - no failure to provide sufficient reasons for concluding worker displayed an adverse reaction and an emotional response to meeting process - Magistrate entitled to accept worker’s evidence as to conduct of meetings - Magistrate did not make finding that there was objective evidence available during meeting that worker was not a person of normal fortitude - appeal dismissed.
Compass Group Healthcare Hospitality Service Pty Ltd
[From Benchmark 23 February 2015]