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

Weekly Insurance Law Review

Friday, 27 February 2015

Executive Summary (One Minute Read)
White v Johnston (NSWCA) - assault and battery - dentist’s treatment was not assault on patient - matter remitted confined to alternative negligence claim
BlueScope Steel Ltd v Cartwright (NSWCA) – work injury damages – truck accident - excessive speed – BlueScope Steel and insurer not liable – appeal allowed
Wilkinson v C & M Leussink Pty Ltd (NSWSC) - workers compensation - judicial review - jurisdictional error - decisions of Medical Appeal Panel quashed
Mordue v QBE Insurance (Australia) Ltd (NSWSC) – motor accident compensation – QBE bound by admission of liability despite withdrawal – Assessor’s exemption of claim quashed
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)
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]
BlueScope Steel Ltd v Cartwright [2015] NSWCA 25
Court of Appeal of New South Wales
Beazley P; Ward & Emmett JJA
Work injury damages - workers compensation - motor vehicle accident - employer contracted with steel manufacturer for transport of steel in containers - truck driver was driving prime mover with attached trailer containing heavy container - truck driver claimed damages for injuries when trailer lurched and rolled - Court held accident caused by tipping of unstable load and that both manufacturer and employer breached duty of care to truck driver - manufacturer had primary liability due to its inadequate packing system, which employer was contractually required to follow - liability apportioned at 85% for steel manufacturer - 15% for employer - held: accident would not have occurred unless prime mover travelling at speed in excess of limit - truck driver failed to establish inadequacy of wedges caused accident - truck driver entirely responsible for injuries - appeal allowed.
BlueScope Steel Ltd
[From Benchmark 25 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]
Mordue v QBE Insurance (Australia) Ltd [2015] NSWSC 98
Supreme Court of New South Wales
Adams J
Motor accidents compensation – plaintiff claimed against QBE under Motor Accidents Compensation Act 1999 (NSW) (MACA) for injuries suffered in motor car rally accident – plaintiff was passenger in vehicle driven by son - unregistered vehicle permit under Road Transport (Vehicle Registration) Act 1997 (NSW) issued in respect of vehicle attached a third party insurance policy issued by QBE – QBE first admitted liability then denied indemnity to driver - plaintiff sought to quash Claims Assessor’s conclusion claim must be exempted from determination on basis QBE had denied indemnity – s81 MACA – held: QBE bound by its notice admitting liability – no room for exercise of discretion to exempt claim - granting relief sought could not be regarded as potentially futile –decision quashed.
[From Benchmark 24 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]
Where They Lived
By Thomas Hardy
         Dishevelled leaves creep down
         Upon that bank to-day,
Some green, some yellow, and some pale brown;
         The wet bents bob and sway;
The once warm slippery turf is sodden
        Where we laughingly sat or lay.
        The summerhouse is gone,
        Leaving a weedy space;
The bushes that veiled it once have grown
        Gaunt trees that interlace,
Through whose lank limbs I see too clearly
         The nakedness of the place.
        And where were hills of blue,
        Blind drifts of vapour blow,
And the names of former dwellers few,
         If any, people know,
And instead of a voice that called, “Come in, Dears,”
         Time calls, “Pass below!”
Thomas Hardy