by David Kidd | 9 Jun 2014 | Uncategorized
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”...
by David Kidd | 1 Jun 2014 | Uncategorized
Illegal enterprise In Quine v Keerasawat 27/10/14 [2014] WADC 150 per Herron DCJ, P was rendered a quadriplegic when the vehicle in which he was a passenger left the road and hit a tree. He had no recollection of the circumstances leading up to the accident. D, who was driving, denied owing P a duty of care alleging both were engaged in a joint illegal enterprise at the time of the crash and no duty was therefore owed to P. The defence pursuant to the Offenders (Legal Action) Act 2000 (WA) was also considered. His Honour found that P was so engaged and dismissed his claim on both grounds. D had stolen the car that day, although P was not involved in the theft. By reason of a series of inferences His Honour rejected P’s argument that he was unaware the vehicle was stolen. P had a record for car stealing and mixed with a crowd that stole cars. D left a gathering to “get a car” and returned with a vehicle no one had seen before. P and D had known each other for years. After the crash P was wearing latex gloves consistent with a desire not to leave fingerprints in the stolen car. The test in Miller v Miller (2011) CLR 446 was applied – P was complicit in the theft and was therefore not owed a duty of care. Unlike the P in Miller v Miller he did not attempt to withdraw from the illegal enterprise prior to the...
