Category Archives: Negligence

Causation, Duty of Care, LAW FIRM, Negligence, Occupiers Liability, Personal Injury, Torts

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48

ON 10 NOVEMBER 2009, the High Court of Australia delivered Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/48.html

Early on New Years day in 2003, Mr Moubarak and Mr Bou Jajem were injured on the premises of Adeels Palace Restaurant in the Sydney suburb of Punchbowl. The men were shot by another patron who had earlier been involved in a dispute on the dance floor, left the premises and returned with a gun.

The men sued for damages, alleging that their injuries were the result of Adeels’ negligence in failing to provide any or any sufficient security on the night of the incident. The men succeeded before the District Court of NSW and NSW Court of Appeal. However, the High Court allowed Adeels’ appeal and set aside the earlier decisions.

The High Court held that the evidence did not establish that action could have been taken to prevent the violent conduct occurring. The court held that the evidence only went as far as showing that the provision of more security might have prevented the damage but did establish, on the balance of probabilities, that it would have prevented the damage.

The court held that it was unnecessary to determine whether or not there was a breach of duty of care because the men had not established that Adeels’s failure to provide any or any sufficient security was a necessary cause of their damage as required under s5D of the Civil Liability Act 2002 (NSW).
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Stuart v Kirkland-Veenstra [2009] HCA 15

Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/15.html

“TORTS – Negligence – Duty of care – Where Mental Health Act 1986 (Vic), s 10 empowered police to apprehend person who “appears to be mentally ill” if reasonable grounds for believing that person had recently attempted suicide or likely to do so – Where police came upon man who appeared to have been contemplating suicide but showed no sign of mental illness – Interaction of common law and relationship established by s 10 – Whether duty of care to prevent foreseeable harm to man at own hand – Relevance of conditions engaging exercise of statutory power – Relevance of fact that duty alleged is duty to protect person from self-harm – Relevance of general rule against duty to rescue – Relevance of vulnerability of particular class of persons – Relevance of control over source of risk to persons.

TORTS – Negligence – Duty of care – Where duty alleged to arise in context of power conferred by Mental Health Act 1986, s 10 – Whether preconditions to existence of power established on facts – Whether common law duty could exist in absence of relevant power.

TORTS – Breach of statutory duty – Relevance as alternative to action alleging breach of common law duty of care – Principles relevant to determining legislative intention that cause of action be available – Relevance of legislative provision for special measures to protect identifiable class of persons or property – Whether existence of discretion to exercise power inconsistent with existence of statutory duty.

STATUTES – Interpretation – Whether person who has attempted suicide to be equated with person “mentally ill” – Relationship between attempted suicide and mental illness – Understanding at common law of relationship between suicide and mental illness.

WORDS AND PRRASES – “mentally ill”.

Crimes Act 1958 (Vic), ss 457, 463B.
Mental Health Act 1986 (Vic), ss 3, 8, 10.
Wrongs Act 1958 (Vic), Pt III.”

The court decided that two police officers did not owe a duty of care to a man who took his life; nor to his surviving spouse. Earlier in the day of the deceased’s death the officers had observed an apparent suicide attempt by the deceased but were satisfied that he sounded rational and was responsive to their questions.

The law does not create an obligation to rescue another from harm and in this case there were no special features outside of the general rule.

As the police officers had not formed the view that the deceased was mentally ill, they had no power to apprehend him and have him assessed under the Mental Health Act.

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Hickson v Goodman Fielder Limited [2009] HCA 11

ON 12 MARCH 2009, the High Court of Australia delivered Hickson v Goodman Fielder Limited [2009] HCA 11 (12 March 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/11.html

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LAW FIRM, Negligence

Shaw v Gadens Lawyers (Legal Practice) [2008] VCAT 2643

Shaw v Gadens Lawyers (Legal Practice) [2008] VCAT 2643 (6 November 2008).

http://www.austlii.edu.au/au/cases/vic/VCAT/2008/2643.html

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Duty of Care, LAW FIRM, Motor Accidents, Negligence

Imbree v McNeilly [2008] HCA 40

ON 28 AUGUST 2008, the High Court of Australia delivered Imbree v McNeilly [2008] HCA 40 (28 August 2008).

The High Court held that an unlicensed 16 year old driver owed the same duty of care as any other driver to take reasonable care to avoid injury to others, overturning its decision in Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 (2 December 1986) in which it had held that the standard of care was that which would be expected of an unqualified and inexperience driver.

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North Sydney Council v Binks [2007] NSWCA 245

North Sydney Council v Binks [2007] NSWCA 245 (18 September 2007).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2007/245.html

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LAW FIRM, Negligence

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42

ON 30 AUGUST 2007, the High Court of Australia delivered Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 (30 August 2007).

Mr Dederer became a partial paraplegic when at the age of 14 he dived from a bridge into the Wollamba River, striking a sandbank.

Dederer sued the Roads and Traffic Authority and the Great Lakes Shire Council for damages arising from their alleged negligence.

The Supreme Court of NSW awarded damages of $840,000, finding contributory negligence of the plaintiff in the order of 25%. The damages were apportioned with the RTA to pay 80% and the council 20%. The NSW Court of Appeal upheld an appeal against the decision against the council and dismissed an appeal oft the decision against the RTA but increased the contributory negligence from 25% to 50%.

The RTA appealed to the High Court of Australia. Dederer cross appealed against the increase in contributory negligence.

The High Court upheld the RTA’s appeal and dismissed the cross appeal. The court held that the duty of care to exercise reasonable care does not impose an obligation to prevent potentially harmful conduct. The court found that the RTA’s duty was to ensure that the road is safe for users taking reasonable care for their own safety. The RTA was held to have reasonably responded to the risk by erecting “no diving” signs. The court found that erecting fences would not necessarily stop people from diving or jumping from bridges.

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Landmark cases, LAW FIRM, Medical negligence, Negligence, Personal Injury, Torts

Harriton v Stephens [2006] HCA 15

ON THIS DAY in 2006, the High Court of Australia delivered Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52; (2006) 226 ALR 391; (2006) 80 ALJR 791 (9 May 2006).

Harriton, a child born with profound disabilities, brought an action against her mother’s doctor in negligence for a failure to warn her mother of the risk of her being born with such disabilities due to the mother’s contraction of the rubella virus during the pregnancy. Her mother said she would have terminated the pregnancy if she had been advised of the risks.

Harriton sought damages for past and future medical treatment and care, general damages and loss of income and had been unsuccessful before the Supreme Court of NSW and NSW Court of Appeal.

The High Court refused the appeal, holding that there was no legally recognisable damage as it could not be determined that the child’s life represented a loss, deprivation or detriment compared with the life being terminated; and the law cannot make comparisons with the life of an able bodied child or a notional life without disabilities.

http://www.austlii.edu.au/au/cases/cth/HCA/2006/15.html

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Allianz Aust v GSF Aust [2005] HCA 26

ON 19 MAY 2005, the High Court of Australia delivered Allianz Aust v GSF Aust [2005] HCA 26; 221 CLR 568; 215 ALR 385; 79 ALJR 1079 (19 May 2005).

The High Court held that a worker who injured his back whilst directed by his employer to use crowbars to unload transport containers from a truck following a mechanical breakdown did not receive an “injury” within the meaning of the Motor Accidents Compensation Act 1999 as the mechanism was not defective. The injury was received through an unsafe system of work rather than the “use or operation of a motor vehicle”.

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QBE Insurance (Australia) Ltd v Smith [2005] NSWCA 130

ON 26 APRIL 2005, the NSW Court of Appeal delivered QBE Insurance (Australia) Ltd v Smith by his next friend Avard & Anor [2005] NSWCA 130 (26 April 2005).

The plaintiff was a nine year old boy who had been travelling as a passenger in a truck driven by his father.  They had been crabbing on a boat borrowed from a friend and were towing the boat back to it’s owner.  The plaintiff’s father stopped the truck across the road from the boat owner’s premises and directed the plaintiff to cross the road and open the gate. The plaintiff was injured when he was struck by another vehicle whilst crossing the road.

The father was held to be at fault in pausing and arranging for the gate to be opened and this was compensable under the Motor Accidents Compensation Act 1999 as it occurred in the use or operation of a motor vehicle.

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