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Kidd's Law Publications Blog

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

Traffic Law – Mechanical or car failure

Mechanical or car failure See www.kiddslaw.com for more See Maintenance of vehicle & Res ipsa loquitur   Engines P was driving along highway when her engine cut out. Her car had power brakes but did not have power steering and no steering abnormality was found. She applied the brakes and tried to keep her vehicle straight, but was unable to keep it from pulling to the right where in the darkness of the night it came to a halt substantially on the incorrect side of the road in a diagonal position. She tried to restart the car unsuccessfully and left it with appropriate warning lights on. Another motorist warned oncoming traffic for her. Several averted colliding with P’s car, but D failed to avoid a collision. D was travelling below the 100 kph speed limit at 95-100 kph, but this was excessive in the circumstances. D failed to keep a proper lookout, as he had an unrestricted view ahead of at least 300 m, and failed to properly control his vehicle. He should have avoided hitting P’s car. D found wholly negligent. See also commentary at Res ipsa loquitur – Placing vehicle on incorrect side of road. FAI v Curtin & Duangprasert 8/8/97 [1997] QCA 241 Lee J (Full Court)   Manufacturer’s liability See Middleton at Steering failure (mechanical)   Repairer’s Liability See Repairer’s liability   Speed “41 We all know that with increased speed, and especially at higher speeds, there is an increased risk of an accident in many situations. We all know that the chance of dealing safely with an unexpected event, such as mechanical failure, is...

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 –...

Journey accidents when on recall

WCT51/14 Bucket (“As the rostered on call doctor … [W] was expected to re-examine and reassess any new patient he had seen overnight [as part of recall duties], before the end of his on call period the following morning. Fulfilment of this expectation was the established practice. … [W] did not need a specific instruction to do so because he correctly understood it was an expectation of the respondent that he would carry out that duty. He was accordingly authorised by the expectation to carry out this recall duty. The obligation was to attend at either FMC or WCH in the morning depending on where he had examined the patient overnight, and before the start of his normal day shift at FMC” @12 – W was injured in a car accident whilst on the way to perform his recall duty before he started his regular morning shift – R contended that W’s “second journey to FMC, on which he was injured, was for the purpose of an unauthorised or voluntary early start to his normal day shift which included checking on Mr A, but none of this was a recall duty” @30 – “At the moment of injury he was travelling to attend work for the purpose of performing more recall work tasks that arose solely as a result of him being recalled to duty earlier in the same on call period. The only reason he was travelling at that particular time was to perform recall duties. He was also entitled to be paid wages for the whole time spent on the journey, as the recall was deemed by...

Fair Work Act – High income threshold – case summaries

[2009] FWA 779 Vic Lee C v CLS P/L (R argued that FWA had no jurisdiction as worker’s {W} annual earnings exceeded the high income threshold of $108,300 by $833 – s332, which defines earnings, considered – $26,100 of W’s remuneration was in the form of a living away from home allowance {LAFHA} – Acton SDP concluded that the LAFHA “was in the nature of compensation to [W] for the additional accommodation expenses he reasonably incurred because he was required to live in Australia away from his usual place of residence in the United Kingdom in order to perform the duties of his employment with CLS … [and that] more than $833 in LAFHA was not earnings within the meaning of s332 … or for the purposes of s382(b)(iii) … Nor was it other benefits worked out in accordance with the regulations, as described in s382(b)(iii) … In considering the scope of ‘earnings’ within the meaning of s332 … or for the purposes of s382(b)(iii) … it is relevant that s332(2)(b) … provides that reimbursements do not constitute such earnings” @18-20. [2010] FWA 1952 NSW Chang v Ntscorp Ltd (A held to have exceeded the high income threshold as FWA satisfied that “the provision of a motor vehicle for private use, and the payment of a home internet subscription were benefits enjoyed by the [A] in return for her work”@25 – approach to calculating the motor vehicle component of her income and the approach to non-monetary benefits in general considered and Fewings applied) [2010] FWA 2907 WA Atkinson v Midway Community Care Inc (applicant exceeded high income threshold when...