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 allowable concentration was exceeded, the very existence of the maximum allowable concentration rebutted the presumption that any level of asbestos exposure could give rise to a risk of contracting an asbestos related disease” @45. Such submission rejected. The trial judge did not err in using the historical publications or the 1962 and 1968 Commonwealth Conciliation and Arbitration Commission proceedings.
Evidence – Hospital reports
See Buggy v Nominal Defendant 28/11/14 [2014] NSWDC 224 where Gibson DCJ, from paragraph 147, gives reasons for being cautious about evidence in police and hospital reports. There were various evidential inconsistencies in this case.
False imprisonment
See Fernando v Commonwealth of Australia 22/12/14 [2014] FCAFC 181 where Besanko & Robertson JJ’s considered there was a rational relationship between personal injury damages awards and false imprisonment awards. In this case the A was unlawfully detained for 1203 days and received nominal damages of $1 and exemplary damages of $25,000. His visa was cancelled without providing him procedural fairness. A could, however, have been detained lawfully. “He would then have been kept in immigration detention under s 196(1) of the Act, and the fact that he was challenging the decision to cancel his visa on the ground that it was unlawful would not have affected the statutory requirement in s 196 of the Act to keep him in immigration detention” @81. Exemplary damages overturned on cross-appeal.
Interest – Delays in bringing or conducting proceedings
See Healey v Penrith City Council; Healey v Ussher; Healey v GIO General Limited (No 2) 23/12/14 [2014] NSWSC 1870 where Adams J quoted Kalls Enterprises … v Baloglow as follows: “Delay is ordinarily not a reason for refusing or reducing the inclusion of interest. The defendant has had the use of the money, and the plaintiff has been out of its use and should be compensated accordingly. The purpose is to compensate the plaintiff for being kept out of its money … Interest should be included unless good cause be shown, in order to fulfil the purpose … Delay can nonetheless be relevant to the exercise of the discretion. For example, unreasonable delay and a high interest rate may mean that the defendant is unjustly left as the source of the plaintiff’s investment income. The question is one of injustice to the defendant. If the interest rates used by the plaintiff exceed commercial interest rates (although commercial interest rates are an imprecise criterion … ), the plaintiff’s self-inflicted loss of use of money may be unfairly made a burden on the defendant” @12. The Ds did not establish that delays in the conduct of proceedings were unreasonable or that he had suffered any injustice.
NSW … Brain
See Scott v Scott 19/12/14 [2014] NSWSC 1814 where Button J awarded P the statutory maximum of $477,000 for NEL. P was 10 in 2004 when he suffered serious brain injury in a car accident. He has severe physical, cognitive and behavioural diificulties. “He walks with a ‘spastic gait’, and is incapable of running, or indeed walking unaided. He has been assessed as requiring the use of two ‘Canadian crutches’ (elbow crutches), but prefers to use one. He often falls as a result of his physical condition. He also suffers from serious difficulties with the use of his arms. In the past he experienced incontinence; he continues to require assistance with toileting and personal hygiene. … He suffers from memory loss, headaches, and speech difficulties, and his ability to concentrate and reason has been seriously impaired. He is unable to work, even in a ‘sheltered’ work environment, despite his enthusiasm to do so. He requires assistance undertaking simple tasks such as dressing himself … [P] is prone to frustration and anxiety. On occasion he will simply absent himself from situations that displease him by wandering away from home. He is also prone to outbursts of anger … [He] has pushed, punched and scratched his siblings in the past, and regularly throws his leg supports when he loses his temper. … He also often makes inappropriate comments, and verbally abuses both family members and members of the public. … [P] is highly disinhibited in his behaviour … [but] has considerable insight into his disabilities, and can become frustrated and upset when he requires assistance as a result of them” @19-21. Other heads of damages also awarded. P’s LOEC assessed on the basis he would have earned 2/3rds of AWE till retirement if he had not been injured. Button J awarded 70 hours of case management per year for 25 years, and 30 hours of case management per year for 40 years (postponed for 25 years) at a rate of $165 per hour” @110. Award for sexual services refused. Extra holiday costs considered and assessed.
NSW CLA s5 … Aircraft
See Stephenson v Parkes Shire Council … 19/12/14 [2014] NSWSC 1758 where Council “engaged South West Helicopters Pty Limited … to undertake an aerial survey of parts of the area for which it was responsible, for the purposes of determining the presence of noxious weeds” @1. Proceedings for nervous shock brought by widow on her behalf and for her children against the Council and South West. The helicopter, with Stephenson, a council officer, another council employee and the pilot onboard, hit overhead powerline and crashed killing all on board. Bellew J held that “the risk in the present case was that the helicopter would impact with a power line and crash, thereby injuring or killing those on board. The nature of the task which was being undertaken necessitated low level flying in an area close to the township of Parkes where overhead wires were present” @226-227. The “Council breached its duty of care to Mr Stephenson by failing to access information available to it regarding the presence of wires in the relevant area, failing to conduct a proper risk assessment and failing to impose, as a condition of the flight, a height threshold of 500f” @234. Causation was also established. Civil Aviation (Carriers’ liability) Act did not apply. Nor was Mr Stephenson a ‘passenger’ as defined by the CAA. “Even if the CAA was otherwise applicable, the nervous shock claims would survive at common law in any event” @332.
NSW MAC Act s66(2) – Full & satisfactory explanation
See Wightley v Whitworth & Anor 19/12/14 [2014] NSWDC 243. P’s “explanation that she initially experienced delay in pursuing her claim due to the effect the injuries had upon her, and because she was ignorant of the legal requirements for making such claims, is a sufficiently full explanation for the delay that occurred to the point where she instructed her solicitors to act in her interests” @65. P “was ignorant of the requirements for making a claim until she went to see her first solicitor, and thereafter, the delays incurred were not of her making. Furthermore, once she became concerned, she took prompt steps to change her legal representation. Until then, she was substantially preoccupied with coping with her difficult position, which involved her own recuperation, assisting the first defendant with his recuperation, and dealing with the emotional issues that surrounded those circumstances” @71. Levy SC DCJ found this a satisfactory explanation.
NSW RT (Third Party Insurance) Act s7 – Meaning of ‘motor accident’
In Insurance Australia Limited trading as NRMA Insurance v Iuli and Afiabo 11/10/13 [2013] ACTSC 209 the 1st D was involved in a car accident. Debris from the accident fell onto path below and the 2nd D hit it with his bicycle about 40 minutes later and was injured. The P insurance company unsuccessfully argued that this was not a ‘motor accident’ within in the meaning of s7 of the Road Transport (Third-Party Insurance) Act. Master Mossop found that “s 7 requires that there be a causal link between the personal injury and the actions of the motor vehicle referred to in paragraph (c) but does not require that the injury is caused during the continuation of one or other of those actions” @45. Appeal dismissed 18/12/14 in [2014] ACTSC 336 where Ross J rejected A’s “contention that the word ‘when’ in paragraph (c) of s 7 should qualify paragraph (b) such that there must be a temporal link with one or other of the items in paragraph (c)(i)-(iv)” @18. “[T]he construction contended for by the appellant would give rise to some unfortunate and unintended consequences. Cyclists, bystanders or rescuers whose injuries are caused by an incident involving the activities referred to in paragraph (c) but not during the continuation of those activities would be excluded from the CTP scheme” @21.
Redundancy payment
See Campton v Centennial Newstan Pty Ltd (No 2) 17/12/14 [2014] NSWSC 1799 per Hall J from paragraph 651. P received a redundancy payment due to mine closure. It was not related to his injury and was therefore not deducted from damages assessment for economic loss.