Insurance Tuesday, 24 March 2015 View in browser

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


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Executive Summary (One Minute Read)
Lane v Chaplin (TASFC) - traffic law - driver’s negligent driving caused death of child - appeal allowed 
IAG Ltd trading as NRMA Insurance v Tran (NSWSC) - motor accidents compensation - no error in assessment for future loss of earning capacity 
Moore v Scenic Tours Pty Ltd (NSWSC) - representative proceedings - firm of solicitors not restrained from acting for plaintiff 
Devren Pty Ltd v Old Coach Developments Pty Ltd (QSC) - contract - joint venture - no breach of contractual or fiduciary duties - claim dismissed 
Wormleaton v Thomas & Coffey Ltd (No 4) (NSWSC) - work injury damages - employer’s duty of care - severe crush injury - employer not liable 
Summaries With Link (Five Minute Read)
Lane v Chaplin [2015] TASFC 4
Full Court of the Supreme Court of Tasmania
Tennent, Wood & Escourt JJ
Traffic law - negligent driving - child struck and killed by vehicle while crossing road - Magistrate found driver’s negligent driving caused child’s death - driver also found guilty of speeding - driver sought review of decision - Chief Justice dismissed count of causing death by negligent driving - appellant contended Chief Justice erred in finding it was not open to Magistrate to conclude defendant’s driving was negligent and causative of child’s death- held: for 50 metres prior to collision and only seconds before collision, driver was under duty of care to travel at 40km/h and he did not - had driver done so, collision would not have occurred - common sense notions of causation resolved question adversely to driver - driver’s negligence necessary and sufficient cause of occurrence of harm to child - appeal allowed.
IAG Ltd trading as NRMA Insurance v Tran [2015] NSWSC 263
Supreme Court of New South Wales
Hall J                 
Motor accidents compensation - claims assessor made assessment in favour of claimant -  insurer sought to challenge component of award for future loss of earning capacity  - insurer contended award not an assessment properly made under s94  Motor Accidents Compensation Act 1999 (NSW) - judicial fact-finding in case involving expert evidence - whether evidence for finding of ageing process compounding injuries - held: nature of claim for future impairment of earning capacity was for assessment of ‘a buffer’, not an award based on assessed weekly loss of future earnings - medical evidence put insurer plainly on notice of nature of  claim - no procedural unfairness in way claims assessor approached assessment - no error of law established - summons dismissed.
Moore v Scenic Tours Pty Ltd [2015] NSWSC 237
Supreme Court of New South Wales
Garling J
Representative proceedings - plaintiff commenced representative proceedings pursuant to Pt 10 Civil Procedure Act 2005 (NSW) against defendant - defendant sought to have firm restrained from acting for plaintiff as his legal advisers - ultimate controller and majority owner of firm fell within definition of group members - son of ultimate controller was sole director of litigation funder - whether there was a family interest principle - held: defendant did not demonstrate any direct or indirect financial connection between firm and litigation funder - ultimate controller had no role to play as solicitor for plaintiff and group members - no inappropriate arrangement or offence to administration of justice - plaintiff entitled to solicitor of his choice - notice of motion dismissed. 
Devren Pty Ltd v Old Coach Developments Pty Ltd [2015] QSC 53
Supreme Court of Queensland
Boddice J
Corporations - plaintiff sought relief against defendants in respect of transactions entered in consequence of joint venture agreement - plaintiff claimed it suffered loss due to defendants’ breaches of agreement and breaches of fiduciary duty - multiple causes of action relied upon - central issue whether person listed as director of plaintiff had authority to bind plaintiff - whether person convicted of fraud was director - whether actual or ostensible authority to act on plaintiff’s behalf - doctrine of lingering apparent authority - held: plaintiff failed to establish any breach of contractual duty by defendants - defendants’ actions in accordance with instructions of person who at all times had ostensible authority to bind plaintiff -  no breach of fiduciary duty by defendants - claim dismissed.
Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260
Supreme Court of New South Wales
Campbell J
Work injury damages - employer’s duty of care - quantum of damages -  plaintiff claimed damages for severe crush injury suffered at work - two defendants admitted breach of duty of care - workers compensation nominal insurer, which was party instead of employer, disputed liablity - quantum of damages - held: particular risk which materialised was beyond scope of employer/employee relationship - even if there was breach by employer, it did not cause  worker’s injury - employer not liable - no contributory negligence by worker - damages assessed - judgment for worker against first defendant in sum of $2,286,832.00 - judgment for worker against second defendant in sum of  $2,286,832.00