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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

Bereavement [2011] FWA 5349 WA Reeve v Ramsey Health Care (the death of A’s grandmother and Family Court proceedings found to be acceptable explanations only for some small part of the delay in A making this application – see Pitrau précis at s366(2)) [2012] FWA 4651 NSW Jansson v Shorefront Enterprises (application a few days late – exceptional circumstances found where “serious and unexpected illness and subsequent death of a close relative … [and where as a result] Mr Jansson also had the primary care of his two young children and the sole responsibility for organising his father-in-law’s funeral” @15 – representational error also contributed to delay) [2014] FWC 7633 WA Moore v S & L Hardware (two days after A’s dismissal, his only surviving immediate relative went into intensive care – he remained at his bedside on a daily basis until his brother died about 10 days later – A then was taken up with funeral arrangements and other related issues for the next two weeks until the funeral – A lodged his application three days later, which was eight days late – exceptional circumstances found) [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’”...

Fair Work Act – Extension of time

S.394 Overseas travel / applicant overseas [2012] FWA 4954 NSW Thorne v Jura Australia Espresso (extension of time granted when A went overseas immediately after her dismissal – she did not have access to the internet while overseas – upon her return she made prompt enquiries about her position and lodged claim within 13 days (42 days late) despite having received unhelpful advice about her ability to claim) [2013] FWC 1537 Qld Dean-Villalobos v QGC (“That the Applicant chose to remain in the United States while she pursued her application, is entirely a matter for the Applicant and does not constitute exceptional circumstances. Further, any difficulties arising from time differences between Australia and the United States are not exceptional circumstances and are simply matters which should have been taken into consideration by the Applicant and those who represented her given that she was resident in the United States” @124) [2013] FWC 8201 WA Whatmore v Virgin Australia Airlines (extension allowed where application only about six days out of time, where A was actively pursuing an internal review and where he was detained overseas – the latter was not significant, as he had internet access – merits of case were limited) [2014] FWC 8207 SA Badenoch v Flinders Campus Community Services (pre-arranged travel to Nepal (where A had no internet access) a few days after being abruptly told of ‘redundancy’ gave rise to exceptional circumstances where claim two days late)   [2015] FWC 215 WA Parker v Hire Intelligence International (the A was dismissed one day before going overseas on annual leave on a pre-planned holiday – application about six...

NSW assessment of damages cases for ankles and arms

Ankle   (contact David kidd at kiddlrs@optusnet.com.au for more cases or for relevant cases for your state or territory. See Kidd’s Damages Australia at www.kiddslaw.com) See Foot P retiree fell and fractured her left fibula above her ankle joint. P “does have a disabling condition from the … fall which is chronic but stabilised; her subsequent weight gain clearly would not assist weight bearing on the left ankle and she continues to use a walking stick. … Only a relatively small amount of domestic assistance was required … The injury itself was of a minor fracture which was successfully treated but with ongoing disabilities in the left ankle affecting her mobility and day-to-day domestic activity. Her condition does not require further treatment, other than perhaps some physiotherapy to the ankle and Panadol for pain, although the complaints of pain and numbness will persist for at least two years from the date of the fall into the foreseeable future”@46-48.  P assessed at 22% of a most extreme case, but D not liable. Vasilikopoulos v NSW Dept. of Housing 5/6/09 [2009] NSWDC 114 Hungerford ADCJ   In Kay v Murray Irrigation Limited 11/12/09 [2009] NSWSC 1411 P (farmer), in a fall in September 2004, suffered “complex fractures of the left ankle, including a fracture of the medial malleolus, comminution and compression of the surface of the tibia and displacement of the lateral malleolus … Three days later he underwent surgery to fix the fractures and to realign the ankle joint. He was discharged after one week with his leg and foot in plaster. He was effectively bed ridden for eight weeks,...

Dust diseases – Assessment of damages (pleural plaques)

In Munzer v State of SA 26/2/15 [2015] SADC 15 Gilchrist J accepted that P “genuinely feels some pain in the flanks of his chest and that he experiences some breathlessness on exertion” @163. Gilchrist J not “certain of the precise organic process that would explain how Mr Munzer’s pleural plaques are causing him chest pain” @166. However, such uncertainty not determinative. “There is no doubt that psychological factors are amplifying Mr Munzer’s pain experiences. There is no doubt that the fact of his pleural plaques and the fact that they are causing some physical symptoms are contributing to his already significantly compromised mental state. There is also no doubt that his fear and apprehension about the potential consequences of his asbestos exposure is contributing to his depressive state” @167. P had many other factors in his life contributing to his psychiatric state. The effect of P’s extensive smoking history factored in. Appropriate “allowance must be made for the contingency that it may be and in the future might be contributing to Mr Munzer’s chest pain and shortness of breath” @178. P is “a 72 year old man who has been experiencing … moderate pain in his chest and some breathlessness on exertion in varying degrees since 1998 as a result of pleural plaques” @180. This has affected his sleep. P awarded $45,000 in general damages ($30,000 being for past loss) among other heads, including $20,000 in exemplary damages as the evidence showed that P “was at risk of exposure to asbestos dust and that ETSA knew, at a time when Mr Munzer was so exposed, that that exposure...

Assessment of damages – Cancer cases

Breast Kite v Malycha 10/6/98 [1998] SASC 6702 Perry J [(1998) 71 SASR 321]  P(f) business partner victim in 1994 when 32 (35 at trial) of medical negligence in that doctor took a needle biopsy of a lump in her breast, but failed to take appropriate steps in response to report showing high suspicion of carcinoma. If cancer had been diagnosed in Dec 94 appropriate treatment could have cured it or at least greatly extended the life expectancy she now has. In Sept 95 P had breast surgery, but by this time she was suffering a ductile carcinoma which was metastatic. Damages assessed on basis of a likelihood of successful treatment as opposed to a mere chance. 41 years reduction of life expectancy. Hair loss due to chemotherapy, “pain and discomfort associated with progressive reduction in her physical movements and capabilities and an increasing dependence upon others” @ 339. Would have probably experienced some of this if diagnosis had been made earlier in any event. Business activities severely curtailed and loss of ability to perform domestic chores and care for the family (see ‘Home maker’ commentary) PNEL $40,000; FNEL $5,000; Loss of life expectation $5,000; PEL $43,000; FEL $363,000; Vol Assist $25,000 (Past), $5,000 (future); specials $23,000; Int on past loss $8,600 Total $517,600   See ACT case of Brown v Willington 24/10/01 [2001] ACTSC 100 Crispin J where late diagnosis of breast cancer which was probably already incurable. Lumps not detected until 7 months after initial consultation. Even if cancer had been detected then treatment may only have had a limited effect – chance life may have been...

Assessment of Damages for Fund management

Case summaries of some assessments for managing damages award. Contact David Kidd at kiddlrs@optusnet.com.au for more and to trial his outstanding national damages publication. In Ehlefeldt v Rowan-kelly 1/5/09 [2009] NSWSC 331 Hoeben J awarded $1,017,000 under this head in the case of a 33y.o. woman suffering hypoxic brain injury and who was also assessed at 100% of the most extreme case. Such award was assessed in relation to an investment fund of $5m over 50 years.   The proper approach to the assessment of fund management fees discussed by Martin J in Waller v McGrath & Anor 19/6/09 [2009] QSC 158 in the case of a 12 y.o. (20 at judgment) suffering serious brain injury. “The defendants should not be obliged to pay, in addition to management workhospitality.com.au of over 60 years was significantly disabled and received a verdict of ten million dollars. Held “that the plaintiff’s claim for the future cost of managing the fund management component of her damages award be allowed … [and] that the plaintiff’s claim for the future cost of managing income earned upon the investment of the fund at an assumed rate of 5 per cent be allowed” @73. Various cases considered. Appeal allowed in part from this decision and related decisions on 2/12/13 in Richards v Gray [2013] NSWCA 402 [66 MVR 16]. McCallum J was correct in finding that it was not appropriate to make any deduction from the fund for the purpose of the calculation of fund management costs as it was speculative as to when certain payments would need to be made. McCallum J erred by allowing compensation...
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