Category Archives: Personal Injury

New CTP Claim Form

The new Personal Injury Claim Form may be downloaded from the State Insurance Regulatory Authority (SIRA) (formerly the Motor Accidents Authority).

A claim may be lodged by sending a completed form and medical certificate to the CTP insurer of the vehicle at fault. Claims must be lodged within 6 months of the date of accident.

http://www.maa.nsw.gov.au/__data/assets/pdf_file/0005/19652/personal_injury_claim_form_MAA21.PDF

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Sydney, Australia

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King v Philcox [2015] HCA 19

ON 10 JUNE 2015, the High Court of Australia delivered King v Philcox [2015] HCA 19 (10 June 2015).

“Negligence – Duty of care – Mental harm – Motor accident – Civil Liability Act 1936 (SA) – Appellant negligently drove motor vehicle resulting in death of passenger – Respondent witnessed aftermath – Respondent later realised brother died in accident – Whether appellant as driver owed duty of care to passenger’s brother not to cause mental harm – Whether mental harm to brother of person killed foreseeable under s 33 of Civil Liability Act – Whether sibling relationship relevant to foreseeability.

Negligence – Damages for mental harm – Civil Liability Act 1936 (SA) – Whether respondent present at scene of accident when accident occurred – Whether accident includes aftermath.

Words and phrases – “accident”, “duty of care”, “incident”, “present at the scene of the accident when the accident occurred”, “proximity”, “reasonably foreseeable”.

Civil Liability Act 1936 (SA), ss 33, 53(1)(a).”

http://www.austlii.edu.au/au/cases/cth/HCA/2015/19.html

The High Court upheld an appeal from a decision of the Full Court of the Supreme Court of South Australia, holding that the respondent could not recover damages for mental harm because of the operation of s53 of the Civil Liability Act 1936 (SA).

Section 53 provides that a plaintiff who is not a close relative to a person injured, killed or endangered in an accident may not recover damages for mental harm unless the plaintiff was physically injured or “present at the scene of the accident when the accident occurred”.

The respondent’s brother was killed in a motor accident caused by the appellant. The respondent had driven past the accident scene on five occasions after the accident but before the scene was cleared, not knowing that the accident involved his brother. He later learned that his brother had died in a car accident and released that he had witnessed the aftermath. He subsequently developed a major depressive disorder.

The High Court found that the respondent was not present at the scene of the accident when the accident occurred and therefore, because of s53, was not entitled to damages for the mental harm that he suffered.

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Negligence – Duty of care – Safe system of work – Work injury

ON THIS DAY in 1986, the High Court of Australia delivered Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

http://www.austlii.edu.au/au/cases/cth/HCA/1986/20.html

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

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Sydney, Australia

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Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 | 13 May 1986

ON THIS DAY in 1986, the High Court of Australia delivered Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

http://www.austlii.edu.au/au/cases/cth/HCA/1986/20.html

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

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Sydney, Australia

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Damages – negligence – personal injuries

Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1 (1 May 1980).

“Damages – Negligence – Personal injuries – Effect of taxation liability on quantum of damages – Whether damages should be reduced by tax plaintiff would have paid in respect of earnings if he had not been injured – Gourley principle.
Practice (N.S.W.) – Judgment – Interest – Damages for personal injuries – Damages for economic loss up to date of judgment – Damages for other than economic loss – Discretion – Supreme Court Act, 1970 (N.S.W.), s. 94 (1).”

http://www.austlii.edu.au/au/cases/cth/HCA/1980/10.html

The court overruled the earlier High Court decision of Atlas Tiles Ltd v Briers (1978) 144 CLR 202 and affirmed the rule in British Transport Commission v Gourley [1956] AC 185.

Damages are to compensate the plaintiff for the loss suffered, no more or no less. If the damages are taxable income, allowance should be made for this by an award of the gross sum.  If the damages are not taxable, the award should be reduced by any tax the plaintiff would have been required to pay. If the plaintiff is entitled to a tax deduction as a result of the loss, an allowance should be made in the award.

In a claim for personal injuries damages, a court must assess the plaintiff’s pre-injury earning capacity with regards to their net income after tax.  An assessment involving gross income would result in over-compensation.

Interest on past continuing losses is not to be paid at the full rate for the whole period as this would lead to over-compensation. Instead, interest is to be paid at half the rate over the full period or at the full rate over half the period so as to take into account the gradual way in which interest accrues. The awarding of interest is a discretionary matter that must be approached in a “broad and practical way”.

 

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Negligence – Duty of care – Breach of duty – Foreseeability of risk of injury – Likelihood of harm occurring – Personal injury

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (1 May 1980).

“Negligence – Duty of care – Breach of duty – Foreseeability of risk of injury – Likelihood of harm occurring – Erection of sign “deep water” in vicinity of shallow water – Whether foreseeable that inexperienced water-skier would fall and suffer injury.”

http://www.austlii.edu.au/au/cases/cth/HCA/1980/12.html

Mason J at p48 expressed the “risk calculus”, that when deciding on a breach of duty of care, the court must not only determine a foreseeable risk but it must also determine a reasonable man’s response by “consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.

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Sydney, Australia

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March v Stramare (E & M H) Pty Ltd [1991] HCA 12

ON THIS DAY in 1991, the High Court of Australia delivered March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; (1991) 9 BCL 215 (24 April 1991).

Negligence – Causation – Duty of care – Injury reasonably foreseeable – Successive negligent acts by different persons – Whether first negligent actor exonerated by intervening negligent act – Apportionment of liability – Wrongs Act 1936 (S.A.), s. 27a(3).

The “but for” test was considered to be not a definitive test of causation in negligence.  Causation is a question of fact to be determined with reference to common sense and experience.

http://www.austlii.edu.au/au/cases/cth/HCA/1991/12.html

The “but for” test has since been revived by the operation of the Civil Liability Acts: see for instance Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

.

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Sydney, Australia

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Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 | 23 April 2001

ON THIS DAY in 2001, Justice Peter McClellan of the Supreme Court of NSW delivered Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 (23 April 2001).

“Judgment on application for verdict by direction

negligence action

whether plaintiff precluded from putting a case in negligence to jury

whether evidence of breach of duty

whether evidence which could establish that the taking of any step would have eliminated risk of plaintiff’s injury

whether evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable

whether rule in Browne v Dunn has application

s 23(4), s 42(1) Factories, Shops & Industries Act 1962”

Sharp had sought damages from her employer alleging that her exposure to tobacco smoke as a barmaid resulted in her suffering from laryngeal cancer.  The case was heard before a jury.

The judgment led to jury directions which resulted in a finding that the cancer was caused, or materially contributed to, by the employer’s negligence.

On 2 May 2001, the jury awarded Sharp damages of $466,000 plus costs.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/336.html

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Stuart v Kirkland-Veenstra [2009] HCA 15 | 22 April 2009

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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Sydney, Australia

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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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Sydney, Australia

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