Recent assessment of damages cases (various)

Cancer – Colorectal See O’Reilly v Western Sussex NHS Trust (No.6) 19/12/14 [2014] NSWSC 1824 where Garling J, in a UK Fatal Accidents Act claim, determined the deceased died two years earlier than he otherwise would have from colorectal cancer due to medical negligence. UK law applied. Widow’s (P) nervous shock claim based on witnessing husband’s declining health (including his collapsing at home) statute barred due to time limitations. Discussion of nervous shock claims by secondary victims. Claim would have failed even if brought in time. P would have been awarded general damages of $143,750 for PTSD and major depression, among other heads, if she had succeeded. Dust diseases – Causation See Van Soest v BHP Billiton Limited 17/6/13 [2013] SADC 81 where Parsons J found foreseeability and causation established where P, who worked as a painter and docker in the Whyalla ship yards for 12 weeks in 1962, inhaled asbestos dust and was diagnosed with mesothelioma in 2011. “The risks of asbestos were known, there were practicable means available to BHP to control the hazard presented by asbestos dust, their use would have minimized the risk to the plaintiff and therefore the resultant negligent exposure to asbestos dust caused or contributed to the plaintiff contracting mesothelioma” @722. The statutory presumptions contained in s 8 of the Dust Diseases Act 2005 Appeal on liability dismissed 19/12/14 in [2014] SASCFC 135. “BHP submitted that, at the time of the plaintiff’s employment, exposures below the relevant National Health and Medical Research Council recommended maximum allowable concentration were not perceived as dangerous. BHP argued that unless the plaintiff could show that the maximum...

Kangaroos – Motor accident cases

D lost control of his vehicle when he swerved onto incorrect side of the road to avoid hitting kangaroo at 3am in the morning. D collided with P who was coming from the opposite direction. Unclear whether kangaroo came from D’s left or right. “As the animal was in the middle of the road and the impact was with the front nearside bumper-bar … then it does seem that the impact occurred when … [D’s] vehicle was already to a considerable extent on its incorrect side of the road. I am not satisfied that at the time the kangaroo came into the … [D’s] view the [P’s] lights were already visible … and so I would not be prepared to find that he knew or should have known that he was diverging into the [P’s] path … [D] offers no explanation of being on the wrong side of the road when it appears that there was in all the circumstances at least an equally safe course open to him, namely to drive straight ahead or to swerve to the left in order to avoid the kangaroo. In crossing to the incorrect side of the roadway and at the same time failing to avoid collision with the kangaroo … [D] put himself in the position where he was likely to lose control of his vehicle … [and pose a danger to other traffic] … I do not think that … [P] at the time when … [D] came into view … would have been in a position to observe that there was anything untoward [up ahead] … The question remains...

Unfair dismissal – Facebook comments

Dismissal – Face book comments Blake K, ‘Facebook Comments Insufficient to Justify Dismissal’ (2010) 16(6) Employment Law Bulletin 87 Payne C, ‘Facing Facebook Facts’ (2012) 32(3) Proctor 28 [2010] FWA 7358 Vic Fitzgerald v … Escape Hair Design (A made negative comments on Face book about hairdressing industry which may have reflected badly on her employer – A wrote “Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!! [sic]” – comments not found sufficient to justify dismissal – Appeal allowed re remedy (only) at [2011] FWAFB 1422) [2011] FWA 5311 Qld O’Keefe v … The Good Guys (the A was upset about pay discrepancies and from his home computer posted offensive and threatening comments towards the operations manager (Ms Taylor) on his Facebook page – about nine other co-workers had access to his Facebook page, but not Ms Taylor – R had policy against such offensive conduct – conduct provided a valid reason for dismissal regardless of whether there was a policy – dismissal not harsh etc) [2011] FWA 8444 NSW Stutsel v Linfox Australia (the A posted remarks on his Facebook page which were construed as racially derogatory remarks about a manager – FWA did not consider the remarks in context to be so serious – someone else posted inappropriate sexual comments about another manager on A’s page – A mistakenly thought he had maximum security settings on his Facebook page, so that the material was private, and that he was not able to delete comments of others – other employees involved in similar misconduct not disciplined –...