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

Weekly Insurance Law Review

Friday, 24 October 2014
Executive Summary (One Minute Read)
Gray v Richards (HCA) - damages - motor vehicle collision - fund management damages to include amount to offset trustee's cost of managing them - appeal allowed in part
Lu v Heinrich (NSWCA) - damages - motor vehicle accident - inadequacy of reasons - substantial wrong or injustice - new trial
NSW v Bishop (NSWCA) - workers compensation - causal link between injury and earlier work injury - appeal dismissed
Bateman v Fairfax Media Publications Pty Ltd (No 2) (NSWSC) - pleadings - defamation - defences - Hore-Lacy pleading struck out
Gruma Oceania Pty Ltd v Bakar (VSCA) - accident compensation - current work capacity - medical panel failed to give adequate reasons for opinion - appeal dismissed
Victorian WorkCover Authority v Crestwood Developments Pty Ltd (No. 2) (VSC) - recovery proceeding - settlement of claim against third party - entitlement to interest - delay
Langmaid v Dobsons Vegetable Machinery Pty Ltd (No 2) (TASSC) - negligence - contract - fire at industrial premises caused by hot work - damages assessed
Summaries With Link (Five Minute Read)
Gray v Richards [2014] HCA 40
High Court of Australia
French CJ, Hayne, Bell, Gageler & Keane JJ
Damages - negligence - appellant suffered brain injury in collision with motor vehicle driven by respondent - appellant sued driver in negligence - proceedings compromised on terms that driver pay appellant $10 million (compromise money) plus damages to cover expenses associated with managing compromise money (fund management damages) - appellant declared incapable of managing own affairs - private trustee appointed to manage estate - trustee charged management fees on funds under management comprising both compromise money and fund management damages - Supreme Court of New South Wales determined fund management damages should include amount to offset cost of managing the fund management damages and further amount to offset cost of managing fund's predicted future income - Court of Appeal reversed decision - held: Court of Appeal erred in deciding no allowance should be made for cost of managing fund management damages but was correct in deciding no allowance should be made for cost of managing fund's predicted future income - appeal allowed in part.
[From Benchmark 17 October 2014]
Lu v Heinrich [2014] NSWCA 349
Court of Appeal of New South Wales
McColl & Basten JJA; Sackville AJA
Damages - motor vehicle accident - appellant injured when motor vehicle he was driving was struck from behind by a motor vehicle driven by respondent - appellant's vehicle stationary at the time of the collision - driver admitted breach of duty of care but pleaded contributory negligence - primary judge found no contributory negligence - primary judge found appellant suffered soft tissue injury as result of accident and that, while he may suffer "some psychotic condition", it was not caused by accident - primary judge awarded damages of $5,296.30 representing one month lost wages and medical expenses which he found were reasonably referable to treatment for minor injury caused by accident - held (by majority): appellant established primary judge failed to give adequate reasons - process of fact-finding miscarried - appellant had arguable case of both physical and psychiatric conditions caused by accident which was not adequately considered - there had been substantial wrong or miscarriage requiring a new trial - appeal allowed - new trial ordered limited to damages.
[From Benchmark 17 October 2014]
NSW v Bishop [2014] NSWCA 354
Court of Appeal of New South Wales
Basten, Emmett & Gleeson JJA
Workers compensation - respondent alleged injury suffered in 2011 was result of disability caused by work injury suffered in 2004 - respondent claimed lump sum compensation for whole person impairment in Workers Compensation Commission - State disputed 2011 injury causally connected with 2004 Injury - arbitrator found in favour of State - presidential member found arbitrator erred in failing to give adequate reasons and in finding there was no causal link - ss352 & 353 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - held: no error of law by presidential member in approach to arbitrator's reasons - presidential member limited approach to identifying and correcting errors of law and fact and did not conduct review or new hearing - no error of law in examination of evidence and other materials before arbitrator or in reaching a different conclusion as to essential fact in issue - appeal dismissed.
[From Benchmark 20 October 2014]
Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380
Supreme Court of New South Wales
McCallum J
Pleadings - defamation - defences - action for defamation and injurious falsehood arising from publication of articles in newspaper - plaintiff objected to defendants’ reliance on Hore-Lacy meanings - s9 Defamation Act 1974 (NSW) - ss24, 25 & 26 Defamation Act 2005 (NSW) - whether decision in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24 recognised a discrete species of common law defence of justification or whether it was properly confined to matters of pleading and practice in State of Victoria - held: decision in Hore-Lacy had no work to do in New South Wales having regard to law and practice - appropriate course was to strike out parts of pleading objected to as having tendency to cause prejudice, embarrassment or delay in the proceedings - Hore-Lacy pleading struck out.
[From Benchmark 21 October 2014]
Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252
Court of Appeal of Victoria
Neave, Santamaria & Kyrou JJA
Judicial review - accident compensation - employer appealed from primary judge’s decision to set aside medical panel’s opinion that worker had current work capacity - primary judge set aside decision on basis of inadequacy of reasons - employer contended primary judge failed to properly apply principles recently articulated by High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43- held: judge’s conclusion that reasons were inadequate was correct - reasons failed to set out path of reasoning for its answer to question whether worker had current work capacity - failure constituted breach of s68(2) Accident Compensation Act 1985 (Vic) which in turn constituted an error of law on the face of the record - judge correctly applied principles in Wingfoot - appeal dismissed.
Gruma Oceania Pty Ltd
[From Benchmark 21 October 2014]
Victorian WorkCover Authority v Crestwood Developments Pty Ltd (No. 2) [2014] VSC 513
Supreme Court of Victoria
Dixon J
Accident compensation - interest - parties sought further clarification of plaintiff's entitlements in proceeding - plaintiff claimed interest on sum calculated pursuant to formula under s138 Accident Compensation Act 1985 (Vic) following Court's declaration of value of factor X - defendant contended plaintiff had delayed in prosecuting recovery proceeding and that credit should be allowed by general percentage deduction in interest that plaintiff should recover - defendant also raised issue of relevance of amount received by plaintiff from another party in settlement of claim under s138 for indemnity against it - held: Court not persuaded procedure adopted in recovery proceeding involved breach of s25 or that there was delay that ought to affect calculation of interest - relevance of settlement amount was issue which should have been raised at trial and which concerned execution of judgments not liability - Court not concerned with issues about recovery of judgment or settlement sums in proceeding - defendant ought not have been permitted to raise issue - judgment for plaintiff - judgment for plaintiff to recover damages by way of interest in sum of $69,706 and thereafter at daily rate of $66.75 until judgment satisfied.
Victorian WorkCover Authority
[From Benchmark 22 October 2014]
Langmaid v Dobsons Vegetable Machinery Pty Ltd (No 2) [2014] TASSC 55
Supreme Court of Tasmania
Tennent J
Damages - negligence - fire in industrial premises - Full Court found by majority that company breached statutory duty, duty of care, and implied terms of contract by failing to comply with Australian Standard 1674 in relation to hot work - Full Court satisfied that hot work caused fire - assessment of quantum of damages to which operator of cool store business and owner of premises/equipment were entitled - certain items of damages agreed - measure and remoteness of damages in actions for breach of contract - reasonableness of claim for costs of replacing equipment as valued where actual replacement costs known - whether grading line a fixture - loss of funds - interest - held: plaintiffs entitled to total damages of $2,315,290.16.
[From Benchmark 21 October 2014]


By Sara Teasdale

Redbirds, redbirds,
Long and long ago,
What a honey-call you had
In hills I used to know;

Redbud, buckberry,
Wild plum-tree
And proud river sweeping
Southward to the sea,

Brown and gold in the sun
Sparkling far below,
Trailing stately round her bluffs
Where the poplars grow -

Redbirds, redbirds,
Are you singing still
As you sang one May day
On Saxton's Hill?

Sara Teasdale