ANNUAL INSURANCE LAW REVIEW COMMITTEE

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2 PARTNERS ANNUAL INSURANCE LAW REVIEW COMMITTEE Rhett Kennedy Fiona Sennett Peter Murdoch Melanie Niotakis John Sharman Elsbeth Reynolds Robert Samut Paul Birkett Richard Leahy Anna Clarke Fiona Sennett Bree Lyell Sharon Templeton No person should rely on the contents contained herein without first obtaining adice from a qualified person. Barry & Nilsson are not responsible for the results of any action taken on the basis of the information contained herein nor for any error or omission therein. Barry & Nilsson expressly disclaim all and any liability and responsibility to any person in respect of anything and in consequence of anything done or omitted to be done by any person in reliance (wholly or partially) upon the whole or part of the contents contained herein. Coer image: Lighting Strikes Brisbane Photograph supplied by: Flemming Bo Jensen Photography

3 The Insurance and Health Team at Barry & Nilsson are proud to present our Annual Insurance Law Reiew for This year the topic of our reiew is Weathering the Storm. Oer the last year the global financial crisis (GFC) has dominated the news. When the GFC struck in 2008, there was a sense that Australia would weather the financial storm. Whilst the impact in Australia has not been as seere as that in other countries, Australia has not been immune to the GFC and its effects. The insurance industry as an integral part of the wider financial sector has ineitably been affected. In the USA, the American International Group (AIG) suffered a seere liquidity crisis. Its credit rating was downgraded below AA status in September 2008, resulting in share alues dropping more than 95% and the AIG receiing billions of dollars in goernment loans to aoid bankruptcy. In Australia, the general insurance industry has been less affected, largely due to the high leel of regulation. It has howeer still been affected with: 1. APRA becoming een more igilant in superising the general insurance market, particularly in relation to solency issues; 2. Access to capital being more costly, resulting in underwriters relying on their existing books for income rather than looking for new business; 3. A decrease in returns from inestment income ordinarily relied upon to supplement underwriting results; 4. The potential of rising premiums; and 5. A downturn in the number of insurance policies taken out in certain areas. With central banks and goernments around the world trying to stimulate their economies to recoer from the GFC, it is important to consider the reasons we are in this position and what strategies can be put in place to aoid or minimise its effects in the future. In that context, Barry & Nilsson Lawyers welcomes our guest speaker, Dr Andries Terblanché, Chairman of Financial Serices at KPMG Australia. Dr Terblanché will discuss contributory factors to the GFC and initiaties to aoid those in the future. We are honoured to hae Dr Terblanché as our key note speaker at this years reiew. He is impeccably credentialed to present on this topic and is in huge demand as a speaker in Australia and beyond. We are sure that you will find his presentation to be both enjoyable and informatie. For Barry & Nilsson, this year has been one of continued growth and actiity. Consistent with the economic enironment that Dr Terblanché will speak of, a by product we hae noted is an increase in claims particularly in relation to economic loss. Not only are instructions from both the local and London markets increasing but files that hae preiously been closed due to lack of actiity, hae reopened with, in some cases, the presentation of statements of claim worth millions of dollars. There hae been a number of promotions this year, the most notable of which is Sharon Templeton to partner. Sharon has been at the firm since March 2001 and is an integral part of the insurance team. Likewise we were pleased to announce a number of promotions to senior associates namely Jo Atherinos, Paul Birkett, Anna Clarke, Megan Daniel, Alison Hunt and Dan McCormack. We hae added our health diision and hae continued to be inoled in proiding eduction to the industry. This year has seen the release by Robert Samut of our newsletters, Health Check and Liability by Design which deal with issues affecting health care proiders and building design professionals respectiely. Robert has also headed up our Professional Edge workshops, which are designed to proide a fresh alternatie for insurance professionals looking for up to date practical information. To date these workshops hae included the Insurance Contracts Act, contractual liability and quantum.

4 We hae also been inited to complete our project with the PNG Goernment to assist in drafting an Insurance Contracts Act to be introduced in parliamentary sittings in We remain heaily inoled with arious industry associations. Peter Murdoch has been inoled with putting together the Queensland held national AILA conference at Hamilton Island this financial year and Rhett Kennedy, as always, has been inoled in the program committee for the local AILA branch intensie. Richard Leahy is a Queensland committee member of ANZIIF and is on the organising committee for ANZIIF s signature Queensland eent, The Sunshine Seminar. We are also actiely inoled in the Australian Professional Indemnity Group (Qld) with Elsbeth Reynolds being a committee member, Women in Insurance and the Risk Management Institute of Australia which is a particular focus for John Sharman. Our inolement with these associations is consistent with our commitment to being part of the insurance industry. Internally we hae focused on finding efficiencies in what we do eeryday and how we can do better. We hae established a number of focus groups including the Innoation Committee, Green Committee, Charity/Pro Bono Committee and the Mentor/Graduate Program. On the recommendation of the Innoation and Green Committee, this years casebook has been deliered solely in an electronic form in recognition of its increased portability and our desire to be green. This years casebook illustrates how the courts hae continued to produce some extraordinary and often unexpected decisions. Examples extend to the serice of documents by posting them online on facebook and the successful plaintiff who threw his teleision into a local dump site only to be hit in the eye with the cord. Our casebook contains major decisions handed down by Australian superior courts for the financial year ending 30 June The judgments deliered and included in this years casebook highlight some trends in the law, including: (a) (b) (c) a rising number of applications regarding disclosure and priilege; a focus on causation; and the remoal of a plaintiff s right to claim damages for loss of chance in medical negligence cases (although this is now the subject of an appeal to the High Court). We trust that you continue to find the casebook a useful resource. The name of the solicitor responsible for drafting each note appears at the end of the casenote. Please contact the solicitor responsible should you require any further information about a particular case. Their professional profiles can be found on our website at Finally I would like to thank the committee members responsible for assisting me in compiling the casebook and organising this eent. They are Paul Birkett, Anna Clarke, Bree Lyell, Melanie Niotakis and Elsbeth Reynolds. They hae all deoted an enormous amount of time and their efforts are highly appreciated. Fiona Sennett Partner

5 CONTENTS PUBLIC LIABILITY Local & State Authorities Anderson Gold Coast City Council [2008] QDC Liability of Council for trip and fall on serice pit Blacktown City Council Hocking [2008] NSWCA Footpath Telstra pit lid defectie immunity of Council for non-feasance under s45 of the Ciil Liability Act 2004 (NSW) Angel Hawkesbury City Council [2008] NSWCA Footpath injury obious risk s45 of Ciil Liability Act 2002 (NSW) Campaspe Shire Council De Young [2008] VSCA Injury to user of Council waste facility failure to adopt recommended practice Western Districts Deelopments Baulkam Hills Shire Council [2008] NSWSC Liability of Council to compensate property owner for pure economic loss Council issued subdiision certificate despite non-compliance with water requirements Woods The Nominal Defendant & Anor [2008] NSWSC Child struck by car unidentified drier claim against nominal defendant and local authority Precision Products (NSW) Pty Ltd Hawkesbury City Council [2008] NSWCA Council issued inalid clean-up notice duty of Council to aoid economic loss and afford procedural fairness Council of the City of Lierpool Turano & Anor [2008] NSWCA Plaintiff killed by falling tree Ciil Liability Act (NSW) - strength of eidence required to proe Causation Jackson Lithgow City Council [2008] NSWCA Duty to intoxicated pedestrian in respect of unfenced wall of a concrete drain in a park plaintiff with no recollection of incident and no witnesses inference of fact from all surrounding Circumstances Adams by her next friend O Grady State of New South Wales [2008] NSWSC Duty of care owed by the State to preent loss of liberty arising out of criminal act Shire of Leonora Cooper [2008] WASCA Duty of local authority in respect of grael road knowledge of risk when road was wet contributory negligence Colbran trading as Tablelands Coffee State of Queensland; Hatmill Pty Ltd & Ors 17 State of Queensland; Maloberti & Ors State of Queensland [2008] QSC 132 Whether public authority owed a duty of care when acting in public interest Shire of Gingin Coombe [2009] WASCA Injury whilst off-road motorbike riding in sand dunes obious risk warning Central Goldfields Shire Haley & Ors [2009] VSCA Council s liability to a pedestrian on a footpath highway authority

6 Workplace Claims Fremantle Ports P&O Ports Ltd [2008] WASCA Liability between joint tortfeasors for accident on jetty Eastside Scaffolding & Rigging Pty Ltd Kazic [2008] NSWCA Apportionment of liability amongst multiple defendants on construction site Bourk Power Sere Pty Ltd & Anor [2008] QCA Liability of employer breach of statutory duty Hoad Peel Valley Exporters Pty Ltd [2008] NSWSC Liability of host employer/occupier consideration of whether pre-existing asymptomatic condition would hae become symptomatic Leeder The State of Western Australia [2008] WASCA Assault of prison officer by prisoner failure by employer to warn plaintiff of prisoner s preious aggressie conduct causation Thomson Twin Towns Employment Enterprises Limited [2008] NSWSC Failure to proide safe place and system of work failure to superise and failure to proide proper equipment Knight Tabcorp Holdings Limited [2008] QSC Plaintiff employed as security officer at defendant s casino plaintiff injured whilst remoing a patron from the casino Austen East Coast Yacht Finishing Pty Ltd & Anor [2008] QDC Plaintiff slipped on a staircase on a luxury yacht under construction Tamerji Rhee [2008] NSWCA Right of workers compensation insurer to recoer payments made to worker where worker receied damages from a third party s151z(1)(b) of the Workers Compensation Act 1987 (NSW) Parsons J.J. Richards & Sons Pty Limited [2008] NSWCA Employee garbage collector injured while dragging bin he knew to be heay duty to warn Seage State of New South Wales [2008] NSWCA Police officer injured when attempting to moe a heay desk unassisted at the police station whether employer breached non-delegable duty of care George Surery [2009] NSWSC 5 39 Whether defendant liable to indemnify employer for compensation paid to plaintiff. Kuhl Zurich Financial Serices Australia Ltd on behalf of WOMA (Australia) Pty Ltd 40 (deregistered company) & Anor [2009] WADC 4 Liability of contractors for worker s liability existence and scope of duty of care J-Corp Pty Ltd Coastal Hire Pty Ltd [2009] WACA Whether retainer to supply scaffolding included an implied term to maintain it in safe condition after erected duty to proide system to detect and remedy interference with erected scaffolding Bon Appetit Family Restaurant Pty Ltd Mongey [2009] NSWCA Warning to insurers and legal counsel regarding untenable appeals where no factual or legal error Macey Macquarie Generation & Anor [2009] NSWCA Duty of occupier to gie instructions for safe access to manhole whether task was simple and obious

7 Papadopoulos MC Labour Hire Serices Pty Ltd & Anor [2009] VSC Implied terms in labour hire contracts s74 Trade Practices Act 1974 (implied warranties) Bostik Australia Pty Ltd Liddiard & Anor [2009] NSWCA Labour hire like arrangement between defendant and employer whether usual labour hire principles could be applied Occupier s Liability The Uniting Church Takacs [2008] NSWCA Liability of commercial property owner to tradesman when requesting a quotation Benton Scott s Refrigerated Freightways [2008] NSWCA Liability of owner of a ehicle truck drier injured while alighting from ehicle Varela Harris Farm Markets Pennant Hills Pty Ltd [2008] NSWDC Plaintiff slipped on crushed grapes at fruit market whether adequate systems of cleaning and inspection in operation BI (Contracting) Pty Limited Uniersity of Adelaide [2008] NSWCA Duty of care to a bystander exposed to asbestos spray at a building site for a short period of time acceptance of expert opinion Valeondis Permanent Trustee Aust Limited & Ors [2008] SADC Ceiling in lift collapsed system to control maintenance to ceiling in lift Ruaro Holcomm Marine Pty Ltd [2008] FCAFC Implied warranties pursuant to s74 of the Trade Practices Act 1974 (TPA) - operations of s68 of TPA Alam Rail Corporation NSW [2008] NSWDC Discrepancy between plaintiff s eidence and CCTV footage contributory negligence under the Ciil Liability Act (NSW) Ellis Uniting Church in Australia Property Trust (Q) [2008] QCA Trip and fall on drieway uneen paer scope of duty of care owed by commercial occupier to members of the public Bunning Hurley s Arkaba Hotel [2008] SADC Plaintiff s chair in gaming room of defendant hotel remoed from behind her by employee assessment of damages Beillesta Pty Ltd Liberty International Insurance Co [2009] NSWCA Plaintiff slipped on squashed orange at shopping centre whether shopping centre owner entitled to contribution from cleaning contractor Parry Woolworths Limited [2009] QCA Multiple back injuries while lifting tub of meat breach of statutory duty estoppel Coles Supermarkets Australia Pty Ltd Tormey [2009] NSWCA Occupier s duty to protect entrants against acts of third parties when a Jones Dunkel inference may be drawn Licensed Premises Anastasiou Chubb Security (Australia) Pty Ltd [2008] VSC Liability of employer for security guard injured while eicting intoxicated patron system of work adequate training

8 Scott C.A.L No 14 Pty Ltd (No 2) [2009] TASSC 2 65 Duty of hotel licensee to preent intoxicated patron from driing Rooty Hill RSL Club Ltd Karimi [2009] NSWCA 2 67 Plaintiff assaulted in car park of licensed premises following altercation inside premises whether reasonable precautions taken to preent assault Portelli Tabriska Pty Ltd & Ors [2009] NSWCA Plaintiff assaulted in a public street following an altercation inside licensed premises whether hotelier owed plaintiff a duty of care Adeels Palace Pty Ltd Moubarak; Adeels Palace Pty Ltd Bou Najem [2009] NSWCA Respondents shot inside a restaurant/nightclub whether duty of care owed and breached by proprietor Brilley Presidential Security Serices of Australia Pty Ltd [2009] NSWDC Plaintiff shot while committing robbery damages for unlawful conduct Residential Premises D Vorak Hiscox [2008] WADC Trespass to person oluntary assumption of risk intoxication Thomas Shaw [2009] NSWSC year old child fell from a bunk bed whether accident was foreseeable and preentable whether owners of premises were negligent Causation Nguyen Cosmopolitan Homes [2008] NSWCA Cause of fire damage standard of proof expert eidence Middleton Erwin & Anor [2009] NSWSC Motor ehicle accident where the steering in one ehicle failed without warning failure to maintain, inspect and design causation Educational Authorities Fitzgerald Hill & Ors [2008] QCA Non-delegable duty of care owed by tae kwon do operator application to withdraw admission Gregory State of New South Wales [2009] NSWSC Duty owed by school to student bullying psychiatric harm causation Animals Elliott & Anor Andrew [2009] SASC Liability of dog owner injury to motorcycle rider loss of consortium and nerous shock PRODUCT LIABILITY State of South Australia Ellis [2008] WASCA Death due to progressie lung cancer asbestos causation contributory negligence where deceased formerly a smoker

9 Thirlway Parnell LP Gas Systems Pty Ltd [2009] WADC LP gas operated car exploded when the plaintiff lit cigarette failure to warn PROFESSIONAL NEGLIGENCE Solicitors & Barristers Holdaway Arcuri Lawyers (a firm) [2008] QCA Failing to sere application under Part 4 of the Succession Act 1981 cause of loss Jawatts Bakery Supplies Pty Ltd Parer & Ors [2008] QSC Alleged failure of solicitor to ensure restraint of trade clause was included in contract for sale of business extent of instructions Daid Daid [2009] NSWCA 8 90 Conflict of interest duty to decline to act when aware of destination of inestment funds Beerley Rawleigh Derek Maxwell Tait [2009] NZSC Liability of solicitor for breach of fiduciary duty acting for husband and wife Medical Negligence The Crown Pegios [2008] NSWSC Dental negligence manslaughter by gross negligence standard of care Elayoubi bhnf Kolled Zipser & Ors [2008] NSWCA Liability of specialist obstetrician/gynaecologist and hospital appellant born with birth defects caused by uterine rupture Queen Elizabeth Hospital Curtis [2008] SASC Delayed diagnosis causation hearing loss hospital treated plaintiff for migraine plaintiff later diagnosed with meningitis Kerr Minister for Health [2009] WASCA Whether appellant s seizure caused by pethidine dose whether doctor breached his duty of failing to warn appellant of the risk of seizure icarious liability of hospital MD Sydney South West Area Health Serice (3) [2009] NSWDC Failure to order pregnancy test prior to surgery Hookey Paterno [2009] VSCA Whether a treatment plan recommended by maxillofacial surgeon was appropriate duty to warn of risks of proposed surgery Gett Tabet [2009] NSWCA Whether irreersible brain damage caused by misdiagnosis by paediatrician loss of chance of better clinical outcome G&M Armellin [2009] ACTCA IVF two embryos implanted when only one was requested Sydney South West Area Health Serice Stamoulis [2009] NSWCA Failure to diagnose breast cancer where the failure led to an increased risk of metastisation by 10% - admissibility of expert witnesses who hae an interest in the proceedings

10 Engineers BHP Coal Pty Ltd O&K Orenstein & Koppel AG [2008] QSC Collapse of a bucketwheel excaator where collapse was caused by design deficiencies and/or inadequate inspection contraention of Trade Practices Act 1974 (Cth) Building Consultants Brown Dream Homes SA Pty Ltd [2008] SASC Liability of building consultant pre-purchase inspection assessment of damages for lost opportunity Street & 7 Ors Luna Park Sydney Pty Ltd & 3 Ors [2009] NSWSC Negligent misrepresentation whether deeloper owes purchasers of adjoining land a duty of care whether deelopment application form a representation to adjoining land owners Financial Planners Eans & Ors Brannelly & Ors [2008] QDC Liability of financial planner for economic loss false statements about inestment misleading and deceptie conduct Wealthcare Financial Planning Pty Ltd Financial Industry Complaints Serice Ltd 118 & Ors [2009] VSC 7 Whether proportionate liability proisions of the Wrongs Act 1958 (VIC) applied to a decision of the Financial Complaints Serice that a financial adisor breached certain proisions of the Corporations Act 2001 (Cth) Real Estate Whittaker Paxad Pty Ltd [2009] WASC Sale of house to plaintiffs misleading or deceptie conduct pursuant to s52 and s84 of the Trades Practices Act 1974 (Cth) by real estate agent Mark Moncrief Steens & Ors Premium Real Estate Ltd [2009] NZSC Breach of fiduciary duty by real estate agent misleading and deceptie conduct Architect Drummond & Rosen Pty Ltd Easey & Ors [2009] NSWCA Scope of duty owed by architect failure of tiles to meet coefficient of friction in wet THE POLICY GIO General Limited Insurance Australia Limited t/as NRMA Insurance [2008] 126 ACTSC 38 Dual insurance proportion of contribution by each insurer Zhang Minox Securities Pty Ltd; Liu Minox Securities Pty Ltd [2008] NSWSC Defendant company wound up application for leae to join insurer as defendant construction of exclusion clauses

11 The Owners Strata Plan Majestic Constructions Pty Ltd & Ors [2008] 128 NSWSC 735 Insurer denied indemnity but sought orders that insured join a third party to the litigation insurer not permitted to require joinder until it accepted liability for insured s claim CGU Insurance Limited Porthouse [2008] HCA Professional indemnity insurance barrister s liability policy known circumstances exclusion Quintano B W Rose Pty Ltd & Ors [2008] NSWSC Professional indemnity policy construction of exclusion clause arising from insolency of insurer Baulderstone Hornibrook Pty Limited Paul Segaert Pty Limited [2008] NSWSC Interpretation of manufacturing, construction, installation exclusion in a professional indemnity insurance policy Ferryboat Pty Ltd & Red Gecko Pty Limited JUA Underwriting Agency Pty Limited & 136 Ors [2008] NSWDC 209 Non-disclosure of business history of restaurant Williamson Suncorp Metway Insurance Ltd & Anor [2008] QSC Plaintiff inured whilst undertaking work for a company controlled by his son whether employee exclusion applied Baulderstone Hornibrook Engineering Pty Ltd Gordian Runoff Ltd & Ors [2008] 139 NSWCA 243 Construction risks exclusion CGU Insurance Limited Corrections Corporation of Australia Staff Superannuation 141 Pty Ltd [2008] FCAFC 173 Professional indemnity policy claims made policy quality of degree of awareness of fact situation or circumstances giing rise to claim Done Financial Wisdom Limited [2008] FCA Leae to proceed against insolent company and bankrupt joinder of insurer inestments exclusion Middleton AON Risks Serices Australia Ltd [2008] WASCA Fraudulent or negligent misrepresentation reliance by a third party on false information proided by a broker s representatie in an affidait McConnell Dowell Middle East LCC Royal & Sun Alliance Insurance Plc [2008] VSC Plant and equipment disappears whether an occurrence for the purposes of the policy whether loss can be attributed to theft Towry Law Chubb Insurance [2008] NSWSC Interpretation of retroactie date in policy equitable estoppel Speno Rail Maintenance Australia Pty Ltd Metals & Minerals Insurance Pty Ltd [2009] 150 WASCA 31 Equitable right of contribution between co-insurers double insurance s45 and s13 of the Insurance Contracts Act 1984 (Cth) Insurance Australia Ltd t/as NRMA Insurance GIO General Ltd [2009] ACTCA WorkCoer claim upon motor accident policy injury occurred whilst unloading a truck Strategic Property Holdings No 3 Pty Ltd Suncorp Metway Insurance Limited [2009] 153 ACTSC 8 Interpretation of limit of liability clause meaning of accidental damage

12 Selected Seeds Pty Ltd QBEMM Pty Ltd & Anor [2009] QSC Broadform policy efficacy exclusion occurrence Barbour Black & Elders Insurance Ltd [2009] QDC Assault causing personal injuries entitlement to rely on the intentional or criminal acts exclusion whether s54 of the Insurance Contracts Act 1984 preented insurer from refusing claim Limit (No 3) Limited ACE Insurance Limited [2009] NSWSC Recoery by one insurer from another consideration of professional liability exclusion and Wayne Tank principle QBE Insurance (Aust) Limited Lumley General Insurance Ltd [2009] VSCA Dual insurance consideration of principles relating to contribution between insurers MOTOR VEHICLE Damm Damm [2008] NSWDC Apportionment of liability where cows strayed onto highway Wheeler Macdonald [2008] NSWSC Intoxicated learner drier intoxicated passenger Nominal Defendant Duntroon Holdings [2008] QCA Application of Motor Accident Insurance Act 1994 (Qld) uninsured crane whether accident happened on road Imbree McNeilly & Anor [2008] HCA Standard of care owed by a learner drier Pretzel Queensland Paulownia Forests Ltd & Anor [2008] QCA Whether a licensed CTP insurer who mistakenly acknowledges a claim as a motor ehicle claim accident is later estopped from resisting the claim on this basis Askew Kidd [2008] WADC Duty owed by drier affected by alcohol/drugs defence of oluntary assumption of risk whether sufficient eidence to proe plaintiff not wearing seatbelt Lyle Soc [2009] WASCA Whether death as a consequence of oerdose of prescription medication a reasonably foreseeable consequence of minor motor ehicle accident Athanassiou Hanekamp [2009] WADC Two motor ehicle accidents whether injuries sustained in first accident caused second to occur causation Dunleay Peak [2009] NSWCA Motor ehicle accident failure to anticipate plaintiff s attempt to execute illegal u-turn not negligent Dominello Dominello & Anor; Dominello The Nominal Defendant & Anor [2009] 173 NSWCA 95 Oil spill on road from unidentified ehicle driing at excessie speed PRIVILEGE Fay Moramba Serices Pty Ltd (No. 2) [2008] NSWSC Waier of priilege whether notice to produce counsel s adice and associated documents referred to in solicitors correspondence knowing and oluntary disclosure

13 Kennedy Nine Network Australia Pty Ltd [2008] QSC Disclosure of letters referring to legal adice pleaded in statement of claim Sharjade Pty Ltd Darwinia Estate Pty Ltd [2008] NSWSC Priilege agreement that access to documents limited to legal representaties Fig Tree Deelopments Ltd Australian Property Custodian Holdings Ltd [2008] 179 FCA 1041 Disclosure of confidential and priileged documents Hill Kirsten Bay Pty Ltd [2009] QDC Disclosure under the Personal Injuries Proceedings Act 2002 request for information prior incidents Australian Competition & Consumer Commission Cadbury Schweppes Pty Ltd 181 [2009] FCAFC 32 Whether priilege attached to finalised proof of eidence Spalding Radio Canberra Pty Ltd [2009] ACTSC Legal professional priilege waier of priilege refreshing or reiewing memory producing proof of eidence/statements DAMAGES Rockdale City Council Micro Deelopments Pty Ltd [2008] NSWCA Loss of opportunity property bought in reliance on incorrect zoning Lee Richards & Transport Accident Commission [2008] QDC Economic loss soft tissue neck injury student at hairdresser college Xu Thurgood & Anor [2008] QSC Damages under the Ciil Liability Act 2003 application for leae to adduce further eidence Bonny Glen Pty Ltd Country Energy [2009] NSWCA Recoerability of economic loss considerations of reasonableness and foreseeability Amaca Pty Ltd Noek [2009] NSWCA Damages for loss of capacity to proide domestic serices meaning of dependent Ehlefedlt Rowan-Kelly [2009] NSWSC Plaintiff suffered brain injury unable to care for children ability to recoer for care proided to her children by others pursuant tociil Liability Act 2002 (NSW) De Beer The State of New South Wales & Anor [2009] NSWSC Electric shock neurocognitie and psychological injuries conflicting medical eidence Clifton Dunn [2009] NSWSC Whether plaintiff s ongoing problems were caused by his injuries or subsequent prescription drug addiction Waller McGrath & Anor [2009] QSC Assessment of damages 12 year old plaintiff traumatic brain injury and 95% whole person impairment

14 PROCEDURE Balnaes Smith & Anor [2008] QSC Leae to withdraw admission Boyd State of Queensland & Anor [2008] QDC Application for leae to proceed no step taken for 3 years claim dismissed for want of prosecution McAskell Caendish Properties Limited & Ors [2008] VSC Disclosure of terms of confidential settlement by one party consideration of releance Stewart Fehlberg & Anor [2008] QSC Expert eidence rules UCPR multiple or joint expert witnesses Hyland Hack [2008] QDC Medical negligence application to extend limitation period material facts of decisie character Wood & Anor Tots Professional Serices Pty Ltd & Anor [2008] QDC Application by plaintiff to join own insurer pursuant to rule 69 of UCPR Roland Ofria Robert William Cameron [No 2] NSWCA Award of indemnity costs where plaintiff unsuccessful in debt recoery action Godfrey Spowers (Victoria) Pty Ltd Lincolne Scott Australia Pty Ltd & Ors 209 [2008] VSCA 208 (appeal of the decision of Surrowee Pty Ltd Hansen Yunken Pty Ltd [2008] VSC 90) Proportionate liability ability of defendant to pursue third parties for contribution where defendant settled with plaintiffs Puttick Tenon Ltd (formerly called Fletcher Challenge Forests Limited) [2008] HCA Whether goerning law is law of the place of the tort Simpson Brett & Suncorp General Insurance Limited [2008] QSC Expert eidence rules multiple experts in personal injury case Brady Woolworths Limited [2009] QDC Whether compulsory conference took place whether strongly held iews in liability proide good reason to dispense with compulsory conference Jessup Pope & Ors [2009] QDC Application to set aside decision to renew statement of claim deliberate delay by plaintiff Johnson Laing O Rourke (BMC) Pty Ltd [2009] QDC Plaintiff injured outside of Australia whether PIPA and/or WCRA applied Grech Sutton [2009] NSWCA Eidence Act 1936 (NSW) limiting orders weight at trial Hickson Goodman Fielder Limited [2009] HCA Motor ehicle accident recoery of workers compensation payments paid Collett Robina Projects Australia Pty Ltd t/as Easy T Retail Centre & Ors [2009] 219 QDC 53 Whether a party is bound to the terms of settlement deed Certain Lloyds Underwriters Kathy Giannopoulos; Certain Lloyds Underwriters 221 Marlene Giannopoulos [2009] NSWCA 56 Application to extend limitation period death of a defendant prejudice

15 WorkCoer Queensland AMACA Pty Ltd & Seltsam Pty Ltd [2009] QCA WorkCoer s right of recoery and indemnity from third party under s272 of the Workers Compensation and Rehabilitation Act 2003 (WCRA) - whether proportionate liability applies Wolski ALH Group Pty Ltd [2009] QDC Scope of respondent s duty to proide information under the Personal Injuries Proceedings Act 2002 The Beach Retreat Pty Ltd Mooloolaba Marina Ltd & Ors [2009] QSC Application for fixed costs cost order against a non-party indemnity costs Hare Mt Isa Mines Ltd & Ors [2009] QCA Remedying non-compliance of notice of claim under Personal Injuries Proceedings Act 2002 JA & BM Bowden & Sons Pty Ltd Doughty [2009] NSWCA Tractor rolloer whether Motor Accidents Compensation Act 1999 (NSW) Workers Compensation Act 1987 (Cth) applies Spring Sydney South West Area Health Serice [2009] NSWSC Defendant s offer of compromise accepted by the plaintiff whether the offer can be withdrawn based on changes in law materially altering the defendant s risk Luck Lusty EMS Pty Ltd [2008] QSC Obtaining medical opinion obtained in litigated proceedings notwithstanding execution of certificate of readiness signed under the PIP Limitations of Actions Act Lee Omni Leisure Operations Pty Ltd [2008] VSC Proceedings not commenced in limitation period application for extension of time inordinate delay due to conduct of lawyer Kambarakis G & L Scaffold Contracting Pty Ltd [2008] QCA Extension of limitation period knowledge of material facts whether medical adice should hae been sought Windsurf Holdings Pty Ltd Leonard: Carlson; Wyill Leonard [2009] NSWCA Limitation of actions choice between jurisdiction prejudice Walters Cross Country Fuels Pty Ltd [2009] NSWCA Leae to extend limitation period denied because of prejudice Gillespie Swift Australia Pty Ltd [2009] QSC What was a material fact of a decisie character extent of injury Jackson Redcliffe City Council & Anor [2009] QCA When time commences in causes of action that relate to recurring damage Palmer & Anor Finnigan & Ors [2009] QSC Application to extend limitation period plaintiff unsuccessful in joining third party as defendant McLaughlin Electrolux Home Products Pty Ltd [2009] QDC New cause of action after expiration of limitation period transfer of proceedings MISCELLANEOUS Erect Safe Scaffolding (Australia) Pty Ltd Sutton [2008] NSWCA Contractual indemnity insurance clause

16 Sarah Nickolls Noakes Rigging Pty Ltd; Peter Bush Noakes Rigging Pty Ltd [2008] 244 NSWDC 299 Duty of bailee for a reward defendant bailee discharged onus by establishing damage not due to its negligence Macquarie Bank Ltd & Ors Nationwide News Pty Ltd & Anor [2009] ACTSC Defamation newspaper article imputations of illegal conduct defence of truth Stuart Kirkland-Veenstra [2009] HCA Police officer s duty to apprehend under the Mental Health Act 1986 (VIC)

17 PUBLIC LIABILITY

18 Anderson THE FACTS On 14 October 2000, the plaintiff tripped and fell on the protruding lid of a serice pit located next to a concrete footpath. The fall occurred on a bright sunny day. The plaintiff would hae been able to see the ground in front of her if she had been keeping a proper lookout. Gold Coast City Council [2008] QDC 126 The plaintiff commenced Liability of Council for trip and fall on serice pit proceedings against Council as occupier of the footpath alleging, amongst other things, that Council was negligent in failing to ensure that the serice pit coers were aligned with the surface leel of the footpath. THE DECISION AT TRIAL The Magistrate dismissed the plaintiff s claim. Whilst finding that the plaintiff s eidence was, in many respects, unsatisfactory and unreliable, he did accept that the protruding serice pit lid was the sole cause of her fall. The Magistrate concluded that there was no duty to eliminate the protrusion and, een if there had been, no breach had been established. The Magistrate considered it releant that the plaintiff was a local who was familiar with the area and knew of the presence of the serice pit coer. THE DECISION ON APPEAL On appeal, the plaintiff argued that the Magistrate had erred in focusing on the plaintiff s indiidual characteristics as any duty owed was owed to the plaintiff as a member of a class, that is, a pedestrian using the footpath. The court accepted that the Magistrate erred in taking into account the personal characteristics of the plaintiff but agreed with the conclusion on liability. The court could not accept that a 1 inch protrusion would pose a risk of injury to pedestrians exercising reasonable care for their own safety. The coer was isible and obious. No special igilance was required. To the extent that there was any risk, the court held that it was ordinary, minor and obious. The court went on to consider whether, in the eent that there was a duty owed by Council, that duty had been breached. Council had a system of regular inspections in place. The footpath in question had been inspected some 11 months prior to the incident. No releant defects were noted at the time. The plaintiff contended that the footpath should hae been inspected more regularly. Council gae priority to areas within the CBD, and, while the subject footpath was close to a shopping centre and would hae reasonably high pedestrian traffic, it was not classified as part of the CBD area. The court accepted that Council s system was reasonable. Eidence had been raised at first instance that a letter had been sent to a Councillor a couple of weeks prior to the incident, complaining of the state of the footpath. There was no eidence as to when the letter was passed on to Council. The court held that there was no eidence to suggest that there was sufficient time for Council to take steps to rectify the footpath between communication of the letter and the plaintiff s fall. The court specifically rejected the plaintiff s argument that the work should hae been carried out within 3 days of receipt of the letter. The plaintiff sought leae to appeal to the Court of Appeal. The application was refused with the Court of Appeal finding that there was no basis upon which the decision of the District Court could be said to be in error. Queensland District Court: 13 June 2008 Mary Schroeder PUBLIC LIABILITY Local & State Authorities 2

19 THE FACTS On 19 January 2002, the plaintiff, Ms Hocking, was walking along the footpath in Reston Aenue, Blacktown City Council Hocking [2008] NSWCA 144 Footpath Telstra pit lid defectie immunity of Council for non-feasance under s45 of the Ciil Liability Act 2002 (NSW) Hebersham within the local goernm ent ar ea of Blacktown City Council (Council). The footpath was of concrete construction with a grass erge between the footpath and a layback kerb to the roadway. Set partly within the footpath and partly within the grass erge was a Telstra communications pit. As the plaintiff walked along the footpath she obsered the lid of the pit in front of her but saw nothing to alert her to the fact that it was defectie. She placed her foot on the middle of the lid which then rotated causing her left leg to enter the pit whilst her right leg splayed out in front of her. She was seriously injured. The Telstra pit had been installed between 1975 and NCI (a contractor to Council) installed the footpath in 1994 or 1995 and it had been inspected by Council employees upon completion. Subsequently, the pit was damaged and the lip of the pit obliterated. At the time of the plaintiff s fall, the lid of the pit was broken and irregular around almost all the edges. The most probable cause of the damage was the passage of a car onto and oer the erge and the pit lid. Council employed a maintenance inspector, Mr Shackleton, at the time of the plaintiff s fall. Mr Shackleton was not called by the Council to gie eidence, howeer, according to a statement gien by him, his duties included the inspection of roads, footpaths, kerbs and gutters for defects which he would then refer to maintenance. Mr Shackleton also stated that, if the condition of the pits or the lids of any utility were to present as an obious hazard and risk to public safety by either being missing or broken, then it was past practice for maintenance inspectors of Council to request a Council barricade to be placed at the site immediately in order to make the area safe. There was no eidence as to the frequency of inspections made by Mr Shackleton or when he last inspected the pit prior to the plaintiff s fall. The plaintiff sued both Telstra and Council in negligence. THE DECISION AT TRIAL The trial judge found that any inspection, had it been properly conducted, would hae reealed that the lip of the pit had been obliterated, creating a danger of instability. In the absence of any eidence as to the frequency of inspections, a regime of regular and properly conducted inspections by Council would hae reealed the damaged state of the pit lid. Council was found to be negligent for its failure, despite haing a regime of inspections in place, to detect that the lid was unsupported at both ends, that it was unstable and a hazard to any pedestrian who might place his or her weight upon it. Further the trial judge found that Council was negligent in failing to adequately inspect the footpath when it was created in a manner that would hae reealed that Council s contractor had failed to create a lip on all four sides of the pit on which the lid could be properly supported. No reference was made by the trial judge to s45 of the Ciil Liability Act 2002 (NSW). The plaintiff s claim against Telstra was dismissed. THE DECISION ON APPEAL Spigelman CJ (with whom Beazley JA and Campbell JA agreed) gae the primary judgment in the matter on the issue of whether Council was negligent by reason of the negligent inspections subsequent to the construction of the footpath. Spigelman CJ stated that a finding of negligent inspection was open, howeer, the appeal should be determined on the basis of Council s reliance on s45 of the Ciil Liability Act 2002 (NSW). He considered that the trial judge had made a finding that the Council did not hae actual knowledge for the purpose of s45(1) and allowed the appeal because: (a) (b) Based on Mr Shackleton s eidence, if he thought that a Telstra pit appeared to constitute a risk he would arrange for a barricade and notify Telstra. This did not occur and that is, of itself, indicatie of the fact that he did not hae actual knowledge of the risk; The trial judge said that if there had been PUBLIC LIABILITY Local & State Authorities 3

20 properly conducted inspections the council would hae been alerted to the absence of a lip and referred to the inspections resulting in a failure to detect that the lid was unsupported at both ends. These two references indicate a positie finding that there was no actual knowledge, i.e. the Council was not alerted and that it did fail to detect. Giles JA, although also allowing Council s appeal, gae a separate judgment. In relation to the issue of negligent inspection following the construction of the footpath by NCI, he found that there was an absence of any eidence to support a finding that there had not been any attempt to make a lip on the grass side when the footpath was laid. Further, such a finding was at odds with the trial judge s finding that the most likely cause of the damage was the passage of cars oer the pit lid. Therefore, there was no negligent inspection by Council at the time of construction of the footpath and this ground of the appeal was allowed. In relation to the issue of actual knowledge, Giles JA found for Council on the grounds that he did not think it was established that inspection should hae alerted Council to the pit being defectie and issues concerned with Council s actual knowledge of the risk did not arise. Tobias JA, in line with the decision of Giles JA, found that there was no eidence capable of supporting the trial judge s finding that the work carried out to the pit at the time the footpath was constructed left the pit without adequate support for its lid and therefore Council was not negligent in this regard. THE DISSENTING APPEAL JUDGMENT Tobias JA gae a dissenting judgment on the issue of whether Council was negligent for its subsequent inspections. Tobias JA found that the findings of the trial judge were tantamount to a finding that Mr Shackleton had actual knowledge of the damaged pit, or an inference could be drawn to that effect by Mr Shackleton s failure to gie eidence. Tobias JA accepted that Mr Shackleton did not hae the authority to either carry out the necessary roadwork or to consider carrying it out and so his knowledge would not be that of Council for the purposes of s45 Howeer, Mr Shackleton was designated by Council as one of its maintenance inspectors whose specific responsibility was to inspect the condition of the footpaths for the purpose of ascertaining whether they or any pits presented an obious hazard by being broken or otherwise defectie, in which eent it was his duty to refer the defectie area to maintenance. Mr Shackleton s knowledge would be that of Council so that the actual knowledge exception to its immunity under s45 would be engaged. As Mr Shackleton was part of the Council s organisation in inspecting its roads for the purpose of ascertaining hazards which required repair by Council s maintenance department, s45 does not protect Council from its failure to carry out repairs or erect a barrier around the hazard and Council s defence based on s45 fails. An application for special leae to appeal to the High Court was refused. New South Wales Court of Appeal: 25 June 2008 Melanie Niotakis PUBLIC LIABILITY Local & State Authorities 4

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