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Kidd's Law Publications Blog

The latest news and updates from Kidd Legal Research Services Pty Ltd

Fair Work Act – Extension of time

Electronic lodgement (difficulties with) [2011] FWA 8375 Vic Hillbrich v C & D DeMartin (the A, who was a third year apprentice, had no internet connection and decided it was too difficult to proceed and was depressed – A contacted FWA soon after his dismissal, but claimed not to know about the 14 day limit or that he could lodge his application other than by the on-line method – extension refused) [2012] FWA 6980 Vic Parker v Cetel Communications (where application may have been one day late and where A had difficulties lodging on-line and effecting payment due to his own lack of skills, exceptional circumstances found) [2013] FWC 2059 NSW Roberts v Ozone Manufacturing (the A thought he had electronically filed his application on time, but when he followed it up two months later he discovered he hadn’t – unclear what went wrong with e-filing – merits of case in A’s favour – extension allowed) [2013] FWC 6586 Vic Garson v Urban Land Authority (A’s application one day late due to his failure to use the electronic lodgement system successfully – it was plausible that his efforts failed due to the volume of material he tried to scan – exceptional circumstances found) [2014] FWC 1085 WA Thorpe v Standard Communications (“as a result of either the applicant’s errors in using the Commission’s efiling system or due to faults in the operation of the efiling system the applicant mistakenly believed he had made his application within the 21 day time limit however when he was advised that no application had been received he immediately emailed his application to the...

Liability & Apportionment – Recent motor vehicle accident cases

Boomgate See Simmons v Rockdale City Council and St George Sailing Club 27/9/13 [2013] NSWSC 1431 [65 MVR 141] per Hall J. P, an experienced sports cyclist, was seriously injured when he struck a boom gate (a solid swinging gate) whilst on an early morning ride. The gate was at the exterior of a car park adjacent to D2’s sailing club premises. The gate had been placed there by D1, in exercise of its powers, to minimize hoon driving in the car park. D1 joined D2 on the basis it had failed to move the boom gate back into position after securing it at night. The Trial Judge, in a lengthy decision, found D1 responsible for the accident. D1 was aware this car park was commonly used as a short cut by cyclists and owed a duty to ensure the boom gate was not a hazard. The arrangement between D1 and D2 as to the opening and closing of the gate was vague, relying on a cleaner employed by D2, and His Honour dismissed the claim against D2, citing an absence of duty. There had been occasional other accidents with cyclists hitting the gate and D1 was obliged to find a better system of stowing the gate. In those incidents the riders observed the gate and were able to reduce speed to avoid significant impact. His Honour found that P had contributed, to the extent of 20%, to the accident for failing to take care for his own safety. Section 87, 114 & 115(2) of Roads Act and s43A of CLA considered. No failure to exercise a statutory power...

Damages – Recent cases

ACT … Wrist See Papp v Finley & Insurance Australia Limited 23/4/15 [2015] ACTSC 74 where P, who is now 53, injured her wrist and shoulder in a car accident in July 2011. “With respect to the right wrist, it was established [P] … suffered a tear of the lunotriquetral ligament” @5. P suffered a “severe anxiety response which is noticeable when she is a driver or passenger in a motor vehicle” @9. P is slower at performing her duties as system operator. “[B]efore the accident, the plaintiff was very active and was able to cope with all household activities and those at work. Since the accident, the plaintiff has endeavoured to maintain her full-time employment which she has been able to do because her employer has given her different duties. In the household … the plaintiff now requires assistance, due to her ongoing pain in her right wrist and left shoulder, in undertaking some household tasks” @111. P has had no time off work since early 2012. P’s right hand and shoulder can be easily aggravated. If P decides not to have a shoulder operation she will be restricted to lighter work. “Such aggravation could jeopardise her employment and impact adversely upon her ability to perform domestic duties” @126. Cowdroy AJ assessed P as entitled to $90,000.00 by way of general damages. The effects of those injuries are continuing, disabling and painful, which will almost certainly affect her in the fulfilment of both her work and domestic duties. Those injuries can lead to periods of incapacity, which affect her in her employment and her home duties” @132. Other...

Unfair dismissal – clean shaven policy

Dismissal – Lawful practice, policy, regs etc (not following) [2015] FWC 1838 SA Felton v BHP (a clean shaven policy existed at R “in the context of the need to wear appropriate Personal Protective Equipment (PPE), being Respirator Protective Equipment (RPE) – face masks or respirators. This need arises due to the nature of the mining and processing environment and in particular potential exposure to Crystalline Silica and other dusts, diesel particulate matter (DPM) and radon decay products … The extended application of the clean-shaven policy arose from advice received by BHP Billiton in 2013 that DPM was a human carcinogen and that further control measures should be adopted to limit exposure … [A] has for many years had a goatee beard and a moustache. There is no dispute that this is not consistent with the clean-shaven policy and would prevent the kind of respirator intended for supply by BHP Billiton to Mr Felton from working appropriately” @5-7 – A contended the “clean-shaven policy and the related instruction was not valid in light of the circumstances including the statutory requirements for consultation on such matters … [and] there was not a causal connection between the policy and the alleged work health and safety … risk, in light of the offer to purchase the more advanced protection afforded by the Airstream helmet” @9 – valid reason found – dismissal not harsh...

Motor & Traffic Law – Pedestrians disobeying traffic lights

In Kigetzis v Roche 19/12/14 [2014] VSC 657 per Rush J, P was injured when struck by a motor vehicle whilst walking across a pedestrian crossing.  After hearing evidence from witnesses His Honour found as a fact that the walk signal was red for P. P “did not check the lights, or for traffic, immediately prior to crossing the intersection. He had no regard to his own safety or to that of other road users” @29. Nevertheless, D driver was found negligent. He was aware, for at least 8 seconds, that a bus and car were stationary at the lights after they had changed to green. This, combined with D’s lack of vision of the pedestrian crossing due to the bus demanded caution on his part. He did not control his vehicle “in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events” per Manley v Alexander [2005] HCA 79. D should also have borne in mind the devastating injury that a car approaching a crossing could do to a pedestrian. For his part, P failed to comply with the fundamental obligations of a reasonable pedestrian. Though he showed a lack of due care D did enter the intersection legally with a green light and at a permitted speed. It was just and equitable that P’s damages be reduced by...