Category Archives: LAW FIRM

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

Tabet v Gett [2010] HCA 12 | 21 April 2010

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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Damages, LAW FIRM, Negligence, Personal Injury

Nagle v Rottnest Island Authority [1993] HCA 76 | 21 April 1993

ON 21 APRIL 1993, the High Court of Australia delivered Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423; (1993) Aust Torts Reporter 81-211; (1993) 112 ALR 393; (1993) 67 ALJR 426 (21 April 1993).

http://www.austlii.edu.au/au/cases/cth/HCA/1993/76.html

Nagle became a quadriplegic after diving into a swimming hole and striking his head on a submerged rock.  It was known to Rottnest that visitors engaged in this activity.

Rottnest was liable to pay Nagle damages as it had breached its duty of care to Nagle to warn him of the risk of submerged rocks.

The risk was foreseeable: “Whether small or not, the risk was certainly not far-fetched or fanciful.”

The accident was cased by a failure on the part of Rottnest to erect a sign.

The Civil Liability Acts have since altered the obligations and responsibilities of public authorities and occupiers in such situations.

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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 THIS DAY in 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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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Ridgeway v R [1995] HCA 66 | 19 April 1995

ON THIS DAY in 1995, the High Court of Australia delivered Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 (19 April 1995).

http://www.austlii.edu.au/au/cases/cth/HCA/1995/66.html

A conviction for drug importation was quashed after the High Court excluded certain evidence that was unlawfully obtained by the police in a controlled operation. However, the court did not go as far as stating that a defence of entrapment exists under Australian law if a person voluntarily and with the necessary intent commits an unlawful act induced by another.

The Commonwealth Parliament subsequently amended the Crimes Act to make controlled operations legal in order to protect such evidence from being ruled inadmissible.

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LAW FIRM

Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56

ON 12 DECEMBER 2012, the High Court of Australia delivered Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 (12 December 2012).

http://www.austlii.edu.au/au/cases/cth/HCA/2012/56.html

Costs – Limit on maximum costs in connection with claim for “personal injury damages” – Legal Profession Act 1987 (NSW), ss 198C and 198D – Where “personal injury damages” defined to have same meaning as in Civil Liability Act 2002 (NSW) – Whether maximum costs limitation applies to claims for personal injury damages resulting from intentional acts.

Statutory interpretation – Principles – Reading provision in context – Whether, when operative statute adopts term in source statute, account must be taken of operation of term in source statute – Effect of amendments to statute.

Words and phrases – “award of personal injury damages”, “claim for personal injury damages”, “maximum costs”, “personal injury damages”, “same meaning”.

The respondents had been awarded damages for personal injuries from being assaulted by hotel security staff. The appellant was the insurer of the company which employed the staff.

The damages awarded were under $100,000. Section 198D of the Legal Profession Act 1987 (NSW) provided that where the amount recovered on a claim for personal injury damages did not exceed $100,000 the maximum costs for legal services provided to a plaintiff were fixed at 20% of the amount recovered or $10,000, whichever was greater.

Section 198C of the Legal Profession Act provided that the meaning of “personal injury damages” had the same meaning as that in the Civil Liability Act 2002 (NSW). Under the Civil Liability Act 2002, awards of damages for personal injury are limited with certain exceptions, one being cases of personal injuries arising from intentional acts.

The respondents argued that s198D must be construed with the exceptions under the Civil Liability Act so that it did not operate with regards to awards for personal injury damages arising from intentional acts.

The High Court allowed appeals brought by the insurer, holding that claims damages for personal injury arising from intentional acts were claims for personal injury damages within the meaning of s198D of the Legal Profession Act. The effect of this decision is that the costs payable by the insurer to the respondents was limited under s198D even though the injuries were received as a result of an intentional act.

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Sydney, Australia

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Constitutional law, Family Law, LAW FIRM

Harris v Caladine [1991] HCA 9 | 17 April 1991

ON THIS DAY in 1991, the High Court of Australia delivered Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991).

Parts of the Family Law Act 1975 (Cth) allowing Judges of the court to make rules delegating judicial powers to registrars and non-judical officers were held to be valid and not in breach of the doctrine of separation of powers found in s71 and Chapters II and III of the Australian Constitution.

Family Court Judges may make rules and delegate their powers as long as they continue to bear the major responsibility for the exercise of judicial power.  The delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions must be subject to review or appeal by a Judge.

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Sydney, Australia

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Contract, Criminal Law, Equity, Evidence, LAW FIRM, Law reform, Legislation, Property Law, United Kingdom, Wills and Probate

Statute of Frauds 1677 | 16 April 1677

ON 16 APRIL 1677, the English Parliament enacted the Statute of Frauds 1677.

This Act required certain dealings with real property, sale of goods, estates, trusts and marriage be reduced to writing and signed in order to avoid fraud or perjury.

The provisions of the Act have since been incorporated into many pieces of legislation around the common law world.

 

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Sydney, Australia

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LAW FIRM

Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13

The High Court of Australia today delivered Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13 (15 April 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/13.html

The High Court upheld the validity to certain amendments to the Mining Act 1992 (NSW) which cancelled three mining licenses. The Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) was held to be within the scope of the NSW Parliament’s constitutional power to make laws granted under s5 of the Constitution Act 1902 (NSW).

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Sydney, Australia

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LAW FIRM

Independent Commission Against Corruption v Cunneen [2015] HCA 14

The High Court of Australia today delivered Independent Commission Against Corruption v Cunneen [2015] HCA 14 (15 April 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/14.html

The High Court dismissed an application for special leave by the NSW Independent Commission Against Corruption (ICAC), holding that ICAC did not have the power to conduct an inquiry into allegations made against the respondents because the alleged conduct was not “corrupt conduct” within the meaning of s8(2) of the Independent Commission Against Corruption Act 1988 (NSW).

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Sydney, Australia

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LAW FIRM

Justice Michelle Gordon appointed to the High Court of Australia

The Australian Government has announced the appointment of the Hon Michelle Marjorie Gordon to the High Court of Australia. She will replace her husband, the Honourable Justice Kenneth Hayne AC, when he retires in June. Justice Gordon is currently a judge of the Federal Court of Australia.

Justice Gordon was born in Perth and is a graduate of the University of Western Australia (Bachelor of Jurisprudence, 1986; Bachelor of Laws, 1987).

Justice Gordon began her legal career in 1987 as a solicitor at Robinson Cox in Perth. The next year she joined Arthur Robinson & Hedderwicks in Melbourne where she became a Senior Associate in 1992.

Justice Gordon joined the Victorian Bar in November 1992, specialising in the areas of commercial litigation, trade practices and taxation. She was elevated to Senior Counsel in 2003 and took an appointment to the Federal Court of Australia in April 2007.

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Sydney, Australia

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