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Kidd's Law Publications Blog

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

Workers compensation – Time provisions re asbestos claims

Asbestos [2015] NTSC 1 Zabic v Alcan Gove P/L (W’s exposure to asbestos was in the 1970s and his mesothelioma was caused by D’s negligence – however, W’s claim for damages was statute-barred – “Because the plaintiff had not suffered damage prior to 1 January 1987, his cause of action in negligence for contracting malignant mesothelioma had not arisen before that date. It follows that the plaintiff’s claim for damages against the defendant after his malignant mesothelioma developed was statute-barred by s 52 Workers Rehabilitation and Compensation Act, and not preserved by s 189 of that Act”...

Workers compensation – Sporting or social activity

Sporting or social activity [2015] NSWCCPD 8 NSW Police Force v Faccin (the R police officer was injured in a rugby match for his regional police team in the Police Association competition – “the appellant did not provide financial assistance with respect to participation in the match and .. Mr Faccin was off duty at the time of the injury. Mr Faccin had not sought permission or approval from his superior … Mr Faccin came to play in the match by reason of an invitation given by a fellow police officer who represented the Association which was affiliated with the Police Sports Council. Mr Faccin qualified for that invitation by reason of the fact that he was himself a serving police officer in the relevant geographical region with which the team was associated and identified. It is open to inference that Mr Faccin’s participation in the match was relevantly encouraged by the appellant given: the appellant’s acceptance of the existence of the Association and its activities; its permission to use the police insignia; the participation of senior officers in the Association including the appointment of such an officer as patron and, significantly in my view, the Association is affiliated with the Police Council of Sport” @74-75 – injury found to have occurred in the course of employment and employment was a substantial contributing...

Motor and Traffic Law – Trifling offences

SA MVA s98B(4) – Demerit points See Robertson v Police 6/2/15 [2015] SASC 13 where Parker J stated that “There is nothing in the text of s 98B(4) to suggest that a finding that an offence is trifling should necessarily attract a greater reduction in the number of demerit points than a finding that other proper cause exists” @20. “It was immaterial whether the magistrate reduced the demerit points because he found that offence was trifling or because he concluded that other proper cause existed” @22. The A had failed to give way to police vehicle coming from right. “The finding by the magistrate that there were aspects of the appellant’s driving which were quite poor and that he had failed to pay sufficient attention provided a proper basis for him to conclude that the offence was not trifling” @27. SA RTA s47B(3)(b) – Whether offence ‘trifling’ In Whitrow v Police 16/2/115 [2015] SASC 17 the A suffered a serious wound and decided to treat it himself, drink alcohol to numb the pain, and then drive himself immediately to the hospital due to concerns about infection. The hospital was quite a distance away. A, who was a holder of a learner’s permit breached several road traffic laws including driving with an alcohol reading of 0.175. A had other options to get to hospital. Nicholson J did not regard the offending as trifling. Comparable cases...

Legal Research Service – Kidd's Publications Search

Publication Search. Kidd LRS is offering a new service to those who don’t yet subscribe to its industrial (Fair Work Australia and SA), damages, motor & traffic law and workers compensation law publications. A results based fee will be charged for searches of Kidd’s publications. If nothing really useful on point found, no...

Fair Work – Recent extension of time cases

FWA Cth s394(3) – Time issues/exceptional circumstances (another application made) [2015] FWC 380 SA Nash v Discovery Holiday Parks Barossa (the A mistakenly lodged a general protections application – upon learning of this A, within three days, lodged late s394 application 26 days late – exceptional circumstances found) [2015] FWC 632 Vic Smith v MacFarlane Generators (the A was dismissed on 24 October 2014 and brought general protections application 14 days later which he discontinued on 28 November, the same day he lodged these unfair dismissal proceedings – A’s “lack of knowledge about the differences between an unfair dismissal remedy application and a General Protections application was the reason for the delay” @22 – “this matter is somewhat finely balanced, with it being moved into Mr Smith’s favour for the reason that there is a demonstration of a desire, and somewhat strongly, on his part to challenge his dismissal from an early point. The evidence shows that he was acutely aware of the statutory time limit and wanted to ensure that he met it” @46 – extension granted) FWA Cth s394(3) – Time issues/exceptional circumstances (bereavement) [2015] FWC 780 NSW Nudd v Commonwealth Bank (“the combination of the obvious stress and anguish of her father’s illness and his ultimate death and the understandable confusion arising from errors made by the applicant’s representatives, constitute ‘exceptional circumstances’” @11) FWA Cth s394(3) – Time issues/exceptional circumstances (combination of factors) [2015] FWCFB 1830 Galati v Veneto Club (s366(2) case – Appeal allowed – “This is a case where there is in evidence a combination of ordinary factors some of which individually may not...

Assessment of damages – Recent cases

See www.kiddslaw.com  for more Inconsistency of laws See Perisher Blue Pty Ltd v Nair-Smith 9/4/15 [2015] NSWCA 90 where inconsistency between s74 of Trade Practices Act and NSW Civil Liability Act found. “Once it is accepted that s 74(1) regulates the quantification of damages, the question becomes how, precisely, does it do that. On its face, s 74(1) says nothing about how damages are to be assessed and quantified. Recourse must be had to the statement in Wallis that it confers entitlement to ‘full contractual liability’. The phrase ‘full contractual liability’ must be understood as a reference to the full amount of damages recoverable at common law undiminished by any State’s or Territory’s legislation and free from any intrusion by such legislation. The primary judge correctly held that Part 2 of the Civil Liability Act is directly inconsistent with s 74(1) of the Trade Practices Act and invalid to that extent. The damages the respondent can recover for breach of s 74(1) are to be determined in accordance with the principles applicable at common law and are not subject to the limitations contained within Part 2 of the Civil Liability Act” @193-194. NSW CLA s5 … Chairlift See Perisher Blue Pty Ltd v Nair-Smith 9/4/15 [2015] NSWCA 90 where, “On boarding a moving chair forming part of the appellant’s triple chairlift, the respondent was struck in the groin area from behind by the armrest of the chair” @1. R brought claim for damages in contract and negligence. Attendant breached duty of car owed to R by failing to observe the condition of the chair as it exited the bullwheel....