ON 23 NOVEMBER 1993, the NSW Court of Appeal delivered Bugden v Rogers (1993) Aust Tort Reports 81-246.
Sydney, Australia
1300 00 2088
Category Archives: Personal Injury
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 | 23 November 2000
ON 23 NOVEMBER 2000, the High Court of Australia delivered Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; 176 ALR 411; 75 ALJR 164 (23 November 2000).
http://www.austlii.edu.au/au/cases/cth/HCA/2000/61.html
The High Court held that the owner/occupier of a shopping centre did not breach its duty of care to an employee of a tenant who was attacked in the unlit shopping centre car park.
Per Gleeson CJ:
“That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. That was variously described in argument as a question concerning the nature, or scope, or measure of the duty. The nature of the harm suffered was physical injury inflicted by a third party over whose actions the appellant had no control. Thus, any relevant duty must have been a duty related to the security of the first respondent. It must have been a duty, as occupier of land, to take reasonable care to protect people in the position of the first respondent from conduct, including criminal conduct, of third parties.” at [17]
“The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship …, would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. … Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable.” [at 35]
Sydney, Australia
1300 00 2088
Rogers v Whitaker [1992] HCA 58 | 19 November 1992
ON 19 NOVEMBER 1992, the High Court of Australia delivered Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992).
http://www.austlii.edu.au/au/cases/cth/HCA/1992/58.html
Dr Rogers had performed surgery on Whitaker’s right eye, which was almost blind. The surgery should have restored her sight, but instead became blind in the left eye when she suffered sympathetic opthalmia. Whilst the risk was remote, Dr Rogers was held to be negligent in failing to warn Whitaker of the risk.
1300 00 2088
Hunter and New England Local Health District v McKenna [2014] HCA 44
ON 12 NOVEMBER 2014, the High Court of Australia delivered Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44 (12 November 2014)
The High Court held that Hunter and New England Local Health District did not owe a duty of care to the relatives of a man who was killed by a patient who had been discharged from the Taree Hospital into the deceased man’s care. No duty of care was owed by the hospital or the doctor because they were under statutory obligations under the Mental Health Act prohibiting the detention of a mentally ill patient unless the hospital’s medical superintendent was of the opinion that no other less restrictive care was appropriate and reasonably available.
1300 00 2088
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 | 10 November 2009
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).
1300 00 2088
CSR Limited v Eddy [2005] HCA 64 | 21 October 2005
ON 21 OCTOBER 2005, the High Court of Australia delivered CSR Limited v Eddy [2005] HCA 64; (2005) 80 ALJR 59 (21 October 2005).
http://www.austlii.edu.au/au/cases/cth/HCA/2005/64.html
The High Court overruled the NSW Court of Appeal decision of Sullivan v Gordon, holding that a person who claims damages for personal injuries cannot claim special damages for the loss of capacity to care for a disabled family member that they would have cared for had they not been injured.
1300 00 2088
David Jones Ltd v Willis [1934] HCA 47 | 17 October 1934
ON 17 OCTOBER 1934, the High Court of Australia delivered David Jones Ltd v Willis [1934] HCA 47; (1934) 52 CLR 110 (17 October 1934).
http://www.austlii.edu.au/au/cases/cth/HCA/1934/47.html
Per Rich J at 118-9:
“..whenever the description of the goods enters into the transaction so that the buyer must be taken to rely upon it to a substantial degree as well as upon the identity of the goods, it is a sale by description. Therefore, if the description is a matter that influenced the buyer and had a material bearing on the decision to buy, even if it was not the only matter that influenced the buyer, then the sale is one by description.”
Goods which only have one specific use are not of merchantable quality if they are not fit for their purpose.
1300 00 2088
Gray v Richards [2014] HCA 40
The High Court of Australia today delivered Gray v Richards [2014] HCA 40 (15 October 2014).
The High Court held that an intellectually impaired plaintiff was entitled to damages for the cost of managing the fund management component of her damages settlement compromise but not for the cost of managing the fund’s future predicted income.
1300 00 2088
Legal Issues Bulletins – NSW Department of Education & Communities
The NSW Department of Education & Communities from time to time publishes Legal Issues Bulletins.
As at 12 October 2014, there are 54 Legal Issues Bulletins. The bulletins, which are prepared as general information for officers of the department, cover issues such as criminal offences, confidentiality, power to search students, discipline, child protection, police interviews, accidents, personal injury, occupational health and safety, insurance and subpoenas. The bulletins may be accessed by visiting http://www.dec.nsw.gov.au/about-us/information-access/legal-issues-bulletins.
Sydney, Australia
1300 00 2088
Annual increase to Civil Liability damages cap
FROM 1 OCTOBER 2014, the Civil Liability (Non-economic Loss) Amendment Order 2014 adjusts the amount that may be awarded for non-economic loss under the Civil Liability Act 2002 (NSW) from $551,500 to $572,200.
Sydney, Australia
1300 00 2088
Legal Helpdesk Lawyers 