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Benchmark
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia. |
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Weekly Insurance Law Review
Friday, 31 October 2014 |
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| Executive Summary (One Minute Read) |
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Szajna
v Australian Postal Corporation (FCA) - workers
compensation - AAT misconstrued injury -
error of law - appeal allowed
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Dansar
Pty Ltd v Byron Shire Council (NSWCA) - negligence
- pure economic loss - delay in obtaining development approval - no duty of
care owed by Council
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Jones
v TCN Channel Nine Pty Ltd (NSWSC) - defamation
- defences - contextual truth - imputations struck out
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Mason
v Transport Accident Commission (VSCA) - accident
compensation - psychiatric injury - leave refused to bring proceedings for damages
- appeal dismissed
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Du
Pradal v Petchell (QSC) - negligence -
snorkeller run over by boat - boat driver liable
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| Summaries With Link (Five Minute Read) |
Szajna
v Australian Postal Corporation [2014] FCA 1136
Federal Court of Australia
Rangiah J
Workers compensation - applicant's husband
employed at respondent's facility as mail officer - husband died at place of
work - death caused by ventricular fibrillation brought on by underlying
coronary artery disease - Administrative Appeals Tribunal affirmed respondent's
determination that applicant was not entitled to compensation under s14 Safety, Rehabilitation and Compensation Act
1988 (Cth) for husband's death - applicant submitted AAT erred by misconstruing
injury in s5A(1) - whether AAT erred
in finding an inevitable consequence of an underlying disease was not an injury
- held: AAT erred in law by concluding that defined term injury incorporated a legal principle that did not exist - AAT also
erred in misconstruing injury in phrase
injury (other than a disease) in s5A(1)(b)
- appeal allowed.
Szajna
[From Benchmark 28 October 2014]
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Dansar
Pty Ltd v Byron Shire Council [2014] NSWCA 364
Court of Appeal of New South Wales
Macfarlan, Meagher & Leeming JJA
Negligence - pure economic loss - Council
assessed spare capacity in treatment plant and resolved to allocate capacity to
new developments - company sought approval of development of property it owned
- deemed refusal of application - company's appeal dismissed by Land and Environment
Court - company lodged new applications which were approved - company alleged
Council breached duty of care to it and claimed damages for economic loss as
result of delay in approving its application - trial judge held Council did not
owe posited duty of care - held (by majority): asserted duty of care
incompatible with Council's unconstrained exercise of its statutory functions
and obligations - no reliance or assumption of responsibility - no relevant
vulnerability - at no time was company relying on assurance from Council that
it would allocate available capacity in particular way and exercise reasonable
care in doing so - company had no right to have any further load committed to
sewerage system - company did not have any right or interest, the enjoyment of
which depended on exercise of care by Council, or existence of which depended
on exercise of care by Council in performance of function it was obliged to
undertake - appeal dismissed.
Dansar Pty Ltd
[From Benchmark 30 October 2014]
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Jones
v TCN Channel Nine Pty Ltd
[2014] NSWSC 1453
Supreme Court of New South Wales
McCallum J
Defamation - defences - contextual truth -
action arising out segment on television programme - plaintiff objected to two
contextual implications specified by defendants - requirement that contextual
imputation be one carried in addition to the defamatory imputations complained
of by plaintiff - s16 Defamation Act 1974
(NSW) - s26 Defamation Act 2005 (NSW)
- held: one contextual imputation struck out on basis it was not capable of
meeting the requirements of s26 - other contextual imputation struck out on
basis it was not capable of arising.
Jones
[From Benchmark 29 October 2014]
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Mason
v Transport Accident Commission [2014] VSCA 267
Court of Appeal of Victoria
Warren CJ; Ashley & Whelan JJ
Accident compensation - applicant sought
leave to bring proceedings for damages pursuant to s93 Transport Accident Act 1986 (Vic) - trial judge refused application
- applicant contended trial judge erred in failing to be satisfied applicant
had established any psychiatric injury from which she was suffering was caused
by road traffic accident involving her mother in 2006 and her mother's death
thereafter - applicant also contended trial judge's reasons were insufficient -
held: trial judge did not err in assessment of applicant's medical history and
causes of her various injuries and conditions - reasons sufficiently revealed
applicant's claim failed because trial judge not satisfied of reliability of
applicant's account of symptoms to experts - no error in finding causation not established
on evidence - leave to appeal granted - appeal dismissed.
Mason
[From Benchmark 28 October 2014]
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Du
Pradal v Petchell
[2014] QSC 261
Supreme Court of Queensland
Mullins J
Negligence - first plaintiff injured while
snorkelling when run over by motor boat driven by defendant - third party was
in first plaintiff's motor boat at time of accident - defendant failed to
comply with speed limit - defendant noticed plaintiff's orange dive float but
failed to slow down and navigate path clear of the dive float and diver – defendant
claimed first plaintiff's negligence caused or contributed to accident -
defendant also claimed contribution or indemnity from third party - first
plaintiff's employer brought claim for damages against defendant for action per quod servitium amisit - ss9, 11, 12,
23 & 59 Civil Liability Act 2003
(Qld) - held: first plaintiff established accident was caused by defendant's breach
of duty of care owed to him - no contributory negligence - defendant's claim against
third party dismissed on basis that either there was no duty of care owed by third
party to first plaintiff or, if there were, there was no breach - employer's
claim against defendant dismissed - judgment for first plaintiff.
Du Pradal
[From Benchmark 28 October 2014]
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III (from Mont Blanc)
By Percy Bysshe Shelley
Some say that gleams of a remoter world
Visit the soul in sleep, that death is slumber,
And that its shapes the busy thoughts outnumber
Of those who wake and live. I look on high;
Has some unknown omnipotence unfurl'd
The veil of life and death? or do I lie
In dream, and does the mightier world of sleep
Spread far around and inaccessibly
Its circles? For the very spirit fails,
Driven like a homeless cloud from steep to steep
That vanishes among the viewless gales!
Far, far above, piercing the infinite sky,
Mont Blanc appears - still, snowy, and serene;
Its subject mountains their unearthly forms
Pile around it, ice and rock; broad vales between
Of frozen floods, unfathomable deeps,
Blue as the overhanging heaven, that spread
And wind among the accumulated steeps;
A desert peopled by the storms alone,
Save when the eagle brings some hunter's bone,
And the wolf tracks her there - how hideously
Its shapes are heap'd around! rude, bare, and high,
Ghastly, and scarr'd, and riven. Is this the scene
Where the old Earthquake-daemon taught her young
Ruin? Were these their toys? or did a sea
Of fire envelop once this silent snow?
None can reply - all seems eternal now.
The wilderness has a mysterious tongue
Which teaches awful doubt, or faith so mild,
So solemn, so serene, that man may be,
But for such faith, with Nature reconcil'd;
Thou hast a voice, great Mountain, to repeal
Large codes of fraud and woe; not understood
By all, but which the wise, and great, and good
Interpret, or make felt, or deeply feel.
Percy Bysshe
Shelley
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