ON 12 AUGUST 2014, the Full Court of the Federal Court of Australia delivered Vergara v Ewin [2014] FCAFC 100 (12 August 2014).
http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/100.html
The Full Court of the Federal Court of Australia dismissed an appeal against last year’s Federal Court decision in Ewin v Vergara (No 3) [2013] FCA 1311 (5 December 2013) in which Mrs Ewin was awarded damages for sexual harassment in the amount of $476,163 together with interest.
Sydney, Australia
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ON 12 AUGUST 1999, the High Court of Australia delivered Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180; 64 ALR 606; 73 ALJR 1190 (12 August 1999).
Negligence – Duty of care – Economic loss – Factors relevant to determination of duty.
Words and phrases – “Duty of care”, “Economic loss”.
Plant Diseases Regulations (WA) Sched 1, Pt B, Item 14(1)(b).
http://www.austlii.edu.au/au/cases/cth/HCA/1999/36.html
Apand was a potato crisp manufacturer who caused a South Australian potato farmer’s potatoes to be infected by supplying him with infected seeds. Neighbouring farms were prohibited from exporting their potatoes to the lucrative Western Australian market for a period of 5 years by reason of being located within 20km of the infected farm.
Perre and his neighbours sued Apand for the pure economic loss resulting from the loss of access to the Western Australian market.
Five of the judges (Gleeson CJ, Gaudron, Gummow, Kirby and Callinan JJ) held that Apand owed a duty of care to all the plaintiffs; the others (McHugh and Hayne JJ) held that only some of the plaintiffs were owed a duty of care.
The court (apart from Kirby J) rejected the idea that proximity is the determinant or “unifying criterion” of the duty of care.
The decision contains seven judgments with four different tests for determining a duty of care for pure economic loss.
Gleeson CJ, Gummow J, Callinan J, Hayne J, in separate judgments, took the view that the duty of care is to be identified by looking at the salient features of the case. They offer a flexible approach that avoids a strict formulation.
Gaudron J found that a duty of care arose in the context of defendant being in a position of control and being able to affect the plaintiff’s legal rights and the plaintiff’s dependence on the defendant.
McHugh J favoured the incremental approach, which identifies the following features as being relevant to a duty of care:
Kirby J favoured foreseeability, proximity and policy, adopting the three stage English test in Caparo Industries Plc v Dickman [1990] 2 AC 605.
The court affirmed it’s earlier decision in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” that there is no absolute exclusionary rule for the recovery of damages for pure economic loss and it is therefore possible for a plaintiff to recover for pure economic loss when “the defendant has knowledge…that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence.”
The court rejected the notion that pure economic loss may only be recovered in circumstances of negligent misstatement as in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd.
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ON 12 AUGUST 1960, the High Court of Australia delivered Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (12 August 1960).http://www.austlii.edu.au/au/cases/cth/HCA/1960/58.html
In a personal injuries action, the defendant bears the evidentiary onus of proof to “exclude the accident as a contributory cause” of the plaintiff’s disabilities: per Dixon CJ at 160.
Sydney, Australia
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Brain Injury Awareness week (11-17 August) begins today.
Over half a million Australians have an acquired brain injury (ABI) and more than 1.6 million Australians are in some way affected. ABI is commonly caused by accidents, disease, stroke, infection or substances.
The National ABI Conference is being held in Bendigo from 11-12 August.
For more information go to http://www.brainlink.org.au/campaign/8/brain-injury-awareness-week-2014
Sydney, Australia
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ON 11 AUGUST 1961, the High Court of Australia delivered McLellan v Bowyer [1961] HCA 49; (1961) 106 CLR 95 (11 August 1961).
http://www.austlii.edu.au/au/cases/cth/high_ct/106clr95.html
When exercising its discretion to grant leave to treat a witness as hostile, the court may take into account the witnesses’ demeanour, prior inconsistent statements, conduct in the witness box, answers to non-leading questions and choice of language (at 102-103).
Sydney, Australia
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ON 11 AUGUST 1948, the High Court of Australia delivered Bank of NSW v Commonwealth (“Bank Nationalisation case”) [1948] HCA 7; (1948) 76 CLR 1 (11 August 1948).
http://www.austlii.edu.au/au/cases/cth/HCA/1948/7.html
The High Court held that the nationalisation of banks was beyond the Commonwealth’s constitutional power.
The Banking Act 1947 (Cth) provided that the Commonwealth Bank could acquire shares in private banks, whether by agreement or compulsion. The effect of the legislation would be to grant an monopoly to the Commonwealth Bank, owned by the Commonwealth.
The Banking Act 1947 was held to be invalid on a number of grounds including (1) that it infringed the s92 constitutional guarantee of freedom of interstate trade, commerce and intercourse by compelling the States and their agencies to bank with the Commonwealth Bank and (2) the proposed acquisition was not on just terms as required under s51(xxxi).
Sydney, Australia
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ON 11 AUGUST 1961, the High Court of Australia delivered Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (11 August 1961).
http://www.austlii.edu.au/au/cases/cth/HCA/1961/48.html
In an action for negligence, the two requirements to be satisfied when recovering damages for loss of earning capacity are (1) “the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury” and (2) “the diminution of his earning capacity is or may be productive of financial loss”: per Dixon CJ, Kitto and Taylor JJ at 347.
Receipt of wage related payments, such as sick leave or long service leave, are to be set off against a claim for financial loss (at 346). However, pensions are not to be taken into account as they are a contractual right in the plaintiff’s favour rather than compensation for his or her work (at 343).
Sydney, Australia
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ON 10 AUGUST 1956, the High Court of Australia delivered Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 (10 August 1956).
http://www.austlii.edu.au/au/cases/cth/HCA/1956/42.html
The duty of care of a reasonably prudent employer is “a duty to take reasonble care to avoid exposing the employees to unnecessary risks of injury” (per Dixon CJ and Kitto J at 25) and “a duty to ensure that all reasonable steps are taken to provide a safe system of working” (per Fullagar J at 34).
Sydney, Australia
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ON 10 AUGUST 1977, the High Court of Australia delivered Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 (10 August 1977).
http://www.austlii.edu.au/au/cases/cth/HCA/1977/43.html
The court allowed an appeal of a murder conviction and ordered a retrial, holding that the irregularities in the admission of certain technically admissible evidence caused a miscarriage of justice.
Evidence of the discovery at the accused’s residence of a number of firearms and photographs which were not related to the alleged murder was held to be not probative and therefore inadmissible. The court held that the admission of such evidence could not be defended on “the principle of completeness” (at [533]).
Likewise, evidence of an unrelated incident concerning the use of a firearm was held to be inadmissible for the same reasons (at [535]).
An unsigned written record of interview that was not adopted by the accused (otherwise know as a “police verbal”) was held to be inadmissible, though it could be used to refresh the memories of the police officers who performed the interview(at [541]). The court acknowledged that unsigned records might be fabricated.
A court has a discretion to refuse to receive evidence that would otherwise be admissible on the grounds of unfairness, that is, when the evidence is highly prejudicial but of little value or weight (at [541]). This discretion is general and not limited to evidence of confessions.
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ON 9 AUGUST 2001, the High Court of Australia delivered Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72; 181 ALR 307; 75 ALJR 1342 (9 August 2001).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/68.html
A provision conferring jurisdiction on a court is to be liberally construed (at [11]).
Statutory interpretation should begin with consideration of the text of the legislation. Judicial exposition should not be favoured over analysis of the legislation itself (at [9], [46]-[51]).
A judge has an obligation to state his or her reasons (at [32]-[33]).
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