Category Archives: Personal Injury

LAW FIRM, Motor Accidents, Personal Injury

Annual increase to motor accident damages caps

FROM 1 OCTOBER 2014, the Motor Accidents Compensation (Determination of Loss) Amendment Order 2014 adjusts the Motor Accidents Compensation Act 1999 by:

  • increasing, from $477,000 to $492,000, the maximum damages that may be awarded for non-economic loss under s134.
  • increasing, from $4,376 to $4,512, the amount beyond which the court must disregard pre-accident weekly earnings when assessing damages for past or future loss of earnings, deprivation or impairment of earning capacity or loss of expectation of financial support under s125.

The order relates to awards of damages for injury or death as a consequence of a motor accident.

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Damages, LAW FIRM, Personal Injury

Motor Accidents Compensation Act 1999 (NSW)

ON 1 OCTOBER 1999, the Motor Accidents Compensation Act 1999 (NSW) commenced.

The Act introduced significant changes to assessment of damages for personal injuries arising from the use or operation of a motor vehicle in NSW. Such changes included:

  • The establishment of the Motor Accidents Assessment Service (MAAS) of the Motor Accidents Authority, consisting of the Claims Assessment and Resolution Service (CARS) and Medical Assessment Service (MAS).
  • The requirement that a s91 certificate be issued by CARS before court proceedings may be commenced.
  • The requirement that CARS assess claims in which the insurer has admitted fault and that the assessments be binding on the insurer but not the claimant.
  • The requirement that MAS assess medical treatment or permanent impairment disputes.
  • Caps on damages for non-economic loss, domestic services and loss of earnings.
  • Thresholds to entitlement to damages for domestic services and non-economic loss, including a greater than 10% permanent impairment threshold for non-economic loss.
  • Abolition or damages for loss of services.
  • Restrictions on damages for compensation to relatives.
  • Restrictions on interest.
  • Restrictions on legal costs.

Motor accident claims have also been affected by the subsequent enactment of the Civil Liability Act 2002 (NSW) and the Motor Accidents (Lifetime Care and Support) Act 1996 (NSW).

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LAW FIRM, Negligence, Nuisance, Personal Injury

State Government Insurance Commission v Trigwell [1979] HCA 40 | 19 September 1979

ON 19 SEPTEMBER 1979, the High Court of Australia delivered State Government Insurance Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617 (19 September 1979).

The High Court confirmed the English common law rule of Searle v Wallbank “that the owner or occupier of a property adjoining the highway is under no legal obligation to users of it so to keep and maintain his hedges, fences and gates as to prevent animals from straying on to it, and that he is not under any duty as between himself and users of it to take reasonable care to prevent any of his animals, not known to be dangerous, from straying on to it” (at 631).

Since this decision, State legislatures have passed laws to make farmers liable for the actions of their animals.

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Damages, LAW FIRM, Personal Injury

Husher v Husher [1999] HCA 47 | 9 September 1999

ON 9 SEPTEMBER 1999, the High Court of Australia delivered Husher v Husher [1999] HCA 47; 197 CLR 138; 165 ALR 384; 73 ALJR 1414 (9 September 1999).

The injured plaintiff was in partnership with his wife but in effect was a sole tradesman with no employees. The High Court held that where an injured plaintiff operates through a corporate or partnership structure in order to minimise his or her tax liability, damages are to be assessed with reference to the full vale of the plaintiff’s earning capacity, not his or her taxable income.

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Costs, Family provision, LAW FIRM, Motor Accidents, Personal Injury

Wilcox v Brydens Compensation Lawyers; Brydens Compensation Lawyers v Wilcox [2014] NSWSC 1222

Wilcox v Brydens Compensation Lawyers; Brydens Compensation Lawyers v Wilcox [2014] NSWSC 1222.

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Sydney, Australia

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

Tame v New South Wales [2002] HCA 35 | 5 September 2002

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.

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Causation, Duty of Care, Evidence, LAW FIRM, Medical negligence, Negligence, Personal Injury

Chappel v Hart [1998] HCA 55 | 2 September 1998

ON 2 SEPTEMBER 1998, the High Court of Australia delivered Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/55.html

A procedure to repair a perforation of the oesophagus carried a small inherent risk of infection which could damage the plaintiff’s laryngeal nerve and voice. The patient, who suffered an infection, was not warned of these risks. It was found that had the patient been informed of the risks he would have deferred the procedure and had it performed by a more experienced surgeon.

Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure with the actual care provided.

The court applied a subjective approach for determining what the patient done had the doctor not been negligent in failing to warn him of the risk.

Per Gaudron J at [32]:

“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”

Per McHugh J at [23]:

“The question of causation is not resolved by philosophical or scientific theories of causation”

The Civil Liability Act 2002 has modified the common law position with regards to the common sense test and subjective approach to causation.

 

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Damages, LAW FIRM, Personal Injury

Griffiths v Kerkemeyer [1977] HCA 45 | 31 August 1977

ON 31 AUGUST 1977, the High Court of Australia delivered Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 (31 August 1977).

Damages – Personal injuries – Assessment – Permanent disablement – Services provided to plaintiff gratuitously – Whether damages recoverable in respect of gratuitous services – Measure of damages – Market cost of provision of services or loss suffered by person providing them – Whether damages held in trust for person providing services.

At common law, a person disabled by the fault of another may recover damages for the commercial value of any necessary nursing and domestic services provided gratuitously by a friend or relative.

Legislation such as the Civil Liability Acts modify the common law, limiting the circumstances of entitlement and the amounts that may be claimed.

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

Northern Sandblasting Pty Ltd v Harris [1997] HCA 39 | 14 August 1997

ON 14 AUGUST 1997, the High Court of Australia delivered Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 (14 August 1997).

http://www.austlii.edu.au/au/cases/cth/HCA/1997/39.html

A landlord has a duty to its tenants to use reasonable care and skill to provide safe premises. The obligation is limited to repair of defects which the landlord was or should have been aware. The landlord must reasonably respond to any information it receives as to the existence of any defect.

The court held that the rule in the English decision of Cavalier v Pope Cavalier v Pope [1906] AC 428 (a landlord is immune from liability in tort for defective premises causing injury) should no longer be followed in Australian law as it is inconsistent with the principles concerning of duty of care developed since Donoghue v Stevenson.

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Civil procedure, Damages, Evidence, LAW FIRM, Personal Injury

Watts v Rake [1960] HCA 58 | 12 August 1960

ON 12 AUGUST 1960, the High Court of Australia delivered Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (12 August 1960).http://www.austlii.edu.au/au/cases/cth/HCA/1960/58.html

In a personal injuries action, the defendant bears the evidentiary onus of proof to “exclude the accident as a contributory cause” of the plaintiff’s disabilities: per Dixon CJ at 160.

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Sydney, Australia

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