Category Archives: Damages

Compensation to relatives, Damages, Negligence, Uncategorized

Taylor v The Owners – Strata Plan No 11564 & Ors [2014] HCA 9

ON 2 APRIL 2014, the High Court of Australia delivered Taylor v The Owners Strata Plan 11564 [2014] HCA 9.

The appellant, Susan Taylor, successfully appealed a decision of the NSW Court of Appeal with respect to a claim for a fatal accident  involving her late husband, Craig Taylor.  The deceased was killed on 7 December 2007, when an awning outside a shop on Sydney Road, Balgowlah, collapsed on him. The appellant made a claim under the Compensation to Relatives Act 1897 on her own behalf and on behalf of the dependants of the deceased. Part of the claim involved a loss of expectation of financial support.

The High Court held that s12(2) of the Civil Liability Act 2002 (NSW) (which limits damages for economic loss and loss of expectation of financial support) does not apply to claims under the Compensation to Relatives Act 1897 (NSW).  It was held that Act is to be construed so that the limits imposed by the section related to the “claimant” but not the deceased.  Accordingly, when assessing damages for loss of expectation of financial support, the court was not required to disregard the amount by which the deceased’s gross weekly earnings, but for his death, would have exceeded three times the average weekly earnings.

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Damages, Disability Law, Human Rights, Insurance Law, LAW FIRM, Law reform, Legislation, Negligence, Personal Injury, Uncategorized

National Disability Insurance Act 2013 (Cth)

ON THIS DAY in 2013, the National Disability Insurance Act 2013 (Cth) received assent.

http://www.austlii.edu.au/au/legis/cth/consol_act/ndisa2013341

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Aviation law, Damages, LAW FIRM, Torts

Barclay v Penberthy

ON 2 OCTOBER 2012, the High Court of Australia delivered Barclay v Penberthy [2012] HCA 40 (2 October 2012)

1.It was confirmed that the rule in Barker v Bolton [1808] EWHC KB J92; (1808) 1 Camp 493 [170 ER 1033] continues to form part of the common law of Australia so that the death of a person does not in and of itself create a cause of action giving rise to a claim for damages. The court held that the employer who lost two employees in an aviation accident could not recover damages for their death even thought their death was caused by the negligence of others.

2.Confirmed that an action per quod servitium amisit (“per quod“) continues to form part of the common law of Australia so that an employer may be awarded damages for the loss of services of an injured employee. The court held that the employer could recover damages from the negligent pilot, his employer and aeronautical engineer for the market value of the loss of the services of its injured employees, calculated with reference to the cost of substitute labour less the wages no longer payable to the injured employees.

3.Held that the negligent pilot and employer owed a duty to the employer of the passengers no to cause it economic pure loss.

Contract, Damages, Employment Law, LAW FIRM

Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357

ON THIS DAY in 2010, the NSW Court of Appeal delivered Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 (17 December 2010).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/357.html

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Sydney, Australia

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Damages, Duty of Care, Insurance Law, LAW FIRM, Medical negligence, Negligence, Personal Injury, Professional negligence

Tabet v Gett [2010] HCA 12

ON 21 APRIL 2010, the High Court of Australia delivered Tabet v Gett [2010] HCA 12 (21 April 2010).

“NEGLIGENCE – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent’s delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.

NEGLIGENCE – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance.

WORDS AND PHRASES – “balance of probabilities”, “damage”, “gist of the action”, “loss of a chance of a better outcome”, “standard of proof”.”

http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html

The law of negligence does not allow for damages to be awarded when the breach of duty of care causes less than a 50% chance of a better outcome.

http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html

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Sydney, Australia

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Contract, Damages, LAW FIRM

Fry v Fitness First Australia Pty Ltd t/as Fitness First [2008] NSWCTTT 1009

Fry v Fitness First Australia Pty Ltd t/as Fitness First [2008] NSWCTTT 1009 (13 May 2008)

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Damages, Dust Diseases, LAW FIRM, Personal Injury

Banton v Amaca Pty Ltd [2007] NSWDDT 29

ON 15 NOVEMBER 2007, the NSW Dust Diseases Tribunal delivered Banton v Amaca Pty Ltd [2007] NSWDDT 29 (15 November 2007).

http://www.austlii.edu.au/au/cases/nsw/NSWDDT/2007/29.html

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Sydney, Australia

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Damages, LAW FIRM, Personal Injury, Workers Compensation

Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15

ON 19 APRIL 2007, the High Court of Australia delivered Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 234 ALR 131; 81 ALJR 919 (19 April 2007).

http://www.austlii.edu.au/au/cases/cth/HCA/2007/15.html

When assessing damages, life expectancy is to be calculated with reference to the ABS projected tables (as opposed to historical tables).

Statutory payments for treatment and rehabilitation expenses are to be deducted after making an apportionment for contributory negligence.

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Damages, Family Law, LAW FIRM, Torts

Magill v Magill [2006] HCA 2006

ON 9 NOVEMBER 2006, the High Court of Australia delivered Magill v Magill [2006] HCA 51; (2006) 231 ALR 277; (2006) 81 ALJR 254 (9 November 2006).

http://www.austlii.edu.au/au/cases/cth/HCA/2006/51.html

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Sydney, Australia

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Damages, LAW FIRM, Personal Injury

Fitness First Australia Pty Ltd v Vittenberg [2005] NSWCA 376

Fitness First Australia Pty Ltd v Vittenberg [2005] NSWCA 376 (4 November 2005)

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