Category Archives: Negligence

LAW FIRM, Negligence

D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12

ON 10 MARCH 2005, the High Court of Australia delivered D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 214 ALR 92; (2005) 79 ALJR 755 (10 March 2005).

The High Court declined to overturn its earlier decision of Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 (13 October 1988).

The High Court upheld the principle that an advocate is immune from being sued in relation to acts or omissions in the conduct of a case and to work “intimately connected” with work in court. Immunity therefore can extend to advice out of court by an advocate or their instructing solicitor which leads to a decision which affects the conduct of a case in court.

The court held that controversies should be finalised between the parties and not re-opened except in a small number of exceptional circumstances.

Lawyers

1300 00 2088

LAW FIRM, Negligence

Minerals Corporation Limited v Anthony Norman Abbot Trading As Piper Alderman Lawyers [2004] NSWSC 246

Minerals Corporation Limited v Anthony Norman Abbot Trading As Piper Alderman Lawyers [2004] NSWSC 246 (2 April 2004).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2004/246.html

Lawyers

Sydney, Australia

1300 00 2088

LAW FIRM, Medical negligence, Negligence, Personal Injury, Professional negligence

Harvey & 1 Ors v PD [2004] NSWCA 97

ON 30 MARCH 2004, the NSW Court of Appeal delivered Harvey & 1 Ors v PD [2004] NSWCA 97. A doctor performing STD tests upon a couple has a duty before the tests are performed to obtain the couple’s consent to share the results.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2004/97.html

Lawyers

Sydney, Australia

1300 00 2088

Damages, LAW FIRM, Medical negligence, Negligence

Cattanach v Melchior [2003] HCA 38

ON 16 JULY 2003, the High Court of Australia delivered Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003).

http://www.austlii.edu.au/au/cases/cth/HCA/2003/38.html

A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. She told the doctor that she believed that her right fallopian tube had been removed when she was 15. The doctor performed a tubal ligation on the left fallopian tube and made no further investigation regarding the right tube. As it turned out, the right tube had not been removed and the woman later fell pregnant, unintentionally.

The woman and her husband sued the doctor and the State of Queensland (who ran the hospital) seeking damages for negligence on the grounds that the doctor failed to advise the woman of the risks of conceiving without specific investigation of the right fallopian tube.

The woman and her husband were awarded damages for the costs of raising and maintaining the healthy but unintended child, despite those damages being for pure economic loss (ie not arising from any actual injury).

The Civil Liability Acts have since prohibited awards of damages for the costs of rearing or maintaining a child or the parents’ loss of earnings whilst rearing or maintaining a child.

Lawyers 1300 00 2088

Civil procedure, Damages, LAW FIRM, Law reform, Negligence

Civil LIability Act 2003 (Qld)

ON 4 MARCH 2003, the Queensland Parliament passed the Civil Liability Act 2003 (Qld).  The Act is taken to have commenced on 2 December 2002.

http://www.austlii.edu.au/au/legis/qld/consol_act/cla2003161

Lawyers

Sydney, Australia

1300 00 2088

Duty of Care, LAW FIRM, Negligence, Personal Injury, Torts

NSW v Lepore [2003] HCA 4

ON THIS DAY in 2003, the High Court of Australia delivered New South Wales v Lepore [2003] HCA 4; 212 CLR 511; 195 ALR 412; 77 ALJR 558 (6 February 2003).

http://www.austlii.edu.au/au/cases/cth/HCA/2003/4.html

Lawyers

Sydney, Australia

1300 00 2088

LAW FIRM, Law reform, Negligence

Ipp Report

ON 30 SEPTEMBER 2002, Justice David Ipp issued his Review of the Law of Negligence final report.

Click to access ipp_report.pdf

Lawyers 1300 00 2088

Duty of Care, LAW FIRM, Motor Accidents, Negligence, Personal Injury

Tame v New South Wales [2002] HCA 35

ON 5 SEPTEMBER 2002, the High Court of Australia delivered Tame v New South Wales [2002] HCA 35; 211 CLR 317; 191 ALR 449; 76 ALJR 1348 (5 September 2002).

In a claim for damages for psychiatric injury caused by negligence, direct perception of the event or its aftermath is not a necessary aspect in all cases.

The question is whether it was reasonable to require the defendant to contemplate the risk of psychiatric injury to the plaintiff, and to take reasonable care to guard against the risk.

Lawyers

Sydney, Australia

1300 00 2088

Civil procedure, Duty of Care, LAW FIRM, Legislation, Medical negligence, Negligence, Nuisance, Occupiers Liability, Personal Injury, Product liability, Professional negligence, Torts

Civil Liability Act 2002 (NSW)

ON 18 JUNE 2002, the NSW Civil Liability Act 2002 was enacted.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

The substantive provisions commenced retrospectively on 20 March 2002. There have been successive amendments, notably those which commenced in December 2002 and 2004 and June 2006.

The Act modifies the Australian common law with respect to civil liability claims in New South Wales, except those set out in s3B.

The Act limits the circumstances in which people may recover damages for civil wrongs and the amount of damages and costs they recover.

The significant features of the Act include:

  • Statement of principles for determining negligence.
  • Modification of causation test.
  • No duty to warn of obvious risk.
  • No liability for materialisation of inherent risk.
  • No liability for harm suffered from obvious risks of dangerous recreational activities.
  • No duty of care for risk warning of dangerous recreational activity.
  • Standard of care for professionals.
  • Contributory negligence can defeat a claim.
  • Fixing damages for economic and non-economic loss, including thresholds, discounts and maximum limits.
  • Limiting interest.
  • Restrictions for persons in custody.
  • Restrictions for mental harm.
  • Allocation of proportionate liability for concurrent wrongdoers.
  • Limiting liability of public authorities.
  • Restricting recovery for intoxicated persons.
  • Exclusion of liability for persons acting in self defence, good Samaritans, food donors or volunteers.
  • Apologies not to affect liability.
  • Limiting damages for birth of a child.
  • Exclusion of liability for trespass or nuisance by ordinary use of aircraft.
  • Costs restrictions.

The Act does not apply to claims (or parts of claims) regarding:

  • Intentional acts with the intent to cause injury or death or sexual assault or other sexual misconduct.
  • Dust diseases.
  • Tobacco.
  • Motor Accidents and public transport accidents.
  • Workers, Victims and Sporting Injuries compensation.

Lawyers

Sydney, Australia

1300 00 2088

Civil procedure, Compensation to relatives, Damages, Disability Law, Insurance Law, LAW FIRM, Law reform, Legislation, Negligence, Personal Injury, Professional negligence

Civil Liability Act 2002 (NSW)

ON THIS DAY IN 2002, some parts of the Civil LIability Act 2002 (NSW) are taken to have commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/