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Kidd's Law Publications Blog

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

Recent cases – Workers compensation law

WCT43/14 Baker (W suffered a right ankle ligament strain at work in 2007 and it was determined in 2008 he had a permanent impairment of 10% – he had a slightly increased vulnerability to further injury as a result – in 2011 he “slipped at work … [and] suffered a ‘right ankle strain/partial tear of lateral ligaments’” @3 – “aggravation may mean ‘an increase in gravity or seriousness.’ Acceleration relates to the progress of a disease itself, and is thus not applicable to the present circumstances of acute traumatic injury. Exacerbation has a similar meaning to aggravation in the sense of requiring some worsening of gravity or seriousness. Deterioration connotes a progressive worsening of an ongoing condition. Recurrence means that a prior injury has happened again or recurred” (footnotes omitted) @27 – in applying the s43(7)(a) test, the “lack of any ongoing functional impairment and of symptoms for over two years prior to the second injury, is … a relevant, but not determinative, factual circumstance to be taken into account” @31 – “the word ‘injury’ in s 43(7)(a) is not used only in the sense of functional or symptomatic injury, but includes all ongoing tissue damage or pathology” @31 –  deterioration, exacerbation, recurrence and acceleration excluded on facts – “both work injuries probably involved partial tears of the same ligaments but to different degrees of severity, despite their different classifications as a strain or partial tear; and … both 2007 injuries were additive contributors to the 2011 injury” @42 – “the second work injury did consist of an increase in the gravity or severity of the structurally compromised and...

Damages assessments – Recent

ACT … Dental See Robinson v Ng 7/11/14 [2014] ACTSC 227 where in 2009 when P was about 50, “[d]uring the course of an attempted extraction of one of her molars, part of the root of the tooth was pushed upwards through the wall of the plaintiff’s sinus and was lodged in the sinus. The plaintiff required remedial surgery and claims damages” @1. Mossop M concluded: (a) The location of the tooth, the breaking of the crown and the absence of movement in the remaining root indicated that by the time of the Second X-ray the risks of the defendant continuing with the extraction outweighed the benefits. (b) The defendant continued the extraction in circumstances where a reasonably competent general dentist would have recognised that the risks associated with continuing were significantly greater than if the plaintiff was referred to an oral surgeon. (c) Notwithstanding the expressed wishes of the patient, it is the dentist that remains in control of the procedure and whether or not it is pursued. That is of particular significance where a patient who has suffered significant pain prior to attendance and a long and difficult extraction. The desire of the patient to have the process successfully completed does not compel or justify a dentist in continuing to persevere when the risks outweigh the benefits. … [A]t the time of the Second X-ray the defendant breached his duty by not ceasing to treat the plaintiff and referring her to an oral surgeon or a general dentist with experience in oral surgery” @134-135. D’s “breach of duty caused the wall of the maxillary sinus to be...

Boomgate injury

Boomgate See Livsey v Australian National Car Parks Pty Ltd8/12/14 [2014] NSWDC 232 where D not found negligent when patron walked under boomgate and was hit on the head as boomgate lowered.

Commissions and mistake re dismissal

Commissions [2014] FCCA 2822 Tiago v John Hopkins Property Pty Ltd (the A claimed for commission she claimed was owing – cl. 17 of the Real Estate Industry Award deals with payment of commission after termination of employment – no commission found to be payable as the employment contract specified otherwise) Dismissal – Mistake by employer [2014] FWC 8877 NSW Yap v Tata Consultancy Services (“Having failed to locate domestic work within Mr Yap’s skill set Mr Yap was dismissed. TCS’s understanding of Mr Yap’s preference for domestic work was a mistake. It was careless. Mr Yap had a preference for domestic work but it was never the case that he would have refused overseas work if that was all that was available. As a result of that misunderstanding no overseas search was properly and appropriately conducted and Mr Yap’s employment was terminated” @10 – no valid reason for dismissal – dismissal harsh...

Dust disease cases – Windfall concerns

See Arentz v Workers' Compensation (Dust Diseases) Board15/8/14 [2014] NSWDC 205 where Neilson DCJ stated that “the recovery of damages at common law does no (sic) affect a worker's right to recover statutory benefits under the Dust Act and, therefore, a worker's common law damages are to be reduced to reflect that entitlement” @30. “In the current case I do not know if any deduction was made by Amaca from its assessment of the plaintiff's damages which led to its offer of compromise. If a deduction were made I do not know how it was calculated. The evidence is silent on those issues. As I have already stated, I can not find that no such deduction was made. Clearly, Amaca ought to have made a deduction. It runs the risk of paying twice” @31. P’s “right to statutory entitlements is not defeated by his common law settlement or by any default of Amaca in doing what the law required it to do”...
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