Brain Injury Awareness week (11-17 August) begins today.
Over half a million Australians have an acquired brain injury (ABI) and more than 1.6 million Australians are in some way affected. ABI is commonly caused by accidents, disease, stroke, infection or substances.
The National ABI Conference is being held in Bendigo from 11-12 August.
For more information go to http://www.brainlink.org.au/campaign/8/brain-injury-awareness-week-2014
Sydney, Australia
1300 00 2088
ON 11 AUGUST 1961, the High Court of Australia delivered Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (11 August 1961).
http://www.austlii.edu.au/au/cases/cth/HCA/1961/48.html
In an action for negligence, the two requirements to be satisfied when recovering damages for loss of earning capacity are (1) “the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury” and (2) “the diminution of his earning capacity is or may be productive of financial loss”: per Dixon CJ, Kitto and Taylor JJ at 347.
Receipt of wage related payments, such as sick leave or long service leave, are to be set off against a claim for financial loss (at 346). However, pensions are not to be taken into account as they are a contractual right in the plaintiff’s favour rather than compensation for his or her work (at 343).
Sydney, Australia
1300 00 2088
ON 10 AUGUST 1956, the High Court of Australia delivered Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 (10 August 1956).
http://www.austlii.edu.au/au/cases/cth/HCA/1956/42.html
The duty of care of a reasonably prudent employer is “a duty to take reasonble care to avoid exposing the employees to unnecessary risks of injury” (per Dixon CJ and Kitto J at 25) and “a duty to ensure that all reasonable steps are taken to provide a safe system of working” (per Fullagar J at 34).
Sydney, Australia
1300 00 2088
ON 6 AUGUST 2014, the NSW Court of Appeal delivered Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257.
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173201
The appellant brought proceedings in the NSW District Court seeking damages for gunshot injuries received when his vehicle collided with an unidentified vehicle and shots were fired from that vehicle before it was driven away.
Kearns DCJ of the District Court entered a verdict for the respondent, finding that the appellant’s injuries were not caused by the fault of a driver of a motor vehicle in the use or operation of a motor vehicle within the meaning of s3A of the Motor Accidents Compensation Act 1999 (NSW).
The Court of Appeal dismissed an appeal against the District Court decision, concluding that although the injuries were the fault of the driver of the unidentified vehicle, and although the injuries were received in the use or operation of a motor vehicle, the proximate cause of the appellants injuries was the gunfire as opposed to the driving of the unidentified vehicle.
1300 00 2088
ON 28 JULY 2014, the NSW Court of Appeal delivered Bunnings Group Ltd v Borg [2014] NSWCA 240.
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172896
The Court of Appeal allowed an appeal against a District Court decision awarding damages to customer of Bunnings Dural who was injured when some timber sleepers fell off a forklift onto his foot.
The Court of Appeal found that there was insufficient factual findings to come to the conclusion of negligence: there was conflicting evidence of the tilting of the forklift and no evidence about effect of warning or what would have occurred if there were more staff.
The Court of Appeal found that there were insufficient findings for it to make a substituted judgment.
The Court of Appeal set aside the verdict and ordered a retrial on the grounds that the trial judge failed to make clear findings about breach and causation as required under the Civil Liability Act 2002, ss 5B, 5C, 5D and 5E.
1300 00 2088
ON 21 JULY 1891, the House of Lords delivered Smith v Charles Baker & Sons [1891] UKHL 2 (21 July 1891).
http://www.bailii.org/uk/cases/UKHL/1891/2.html
The English Court of Appeal had held that a railway worker could not recover damages for his injuries because he had voluntarily assumed the risk (volenti non fit injuria).
On appeal, the House of Lords held that the worker was not barred from recovery by the mere fact that he continued to work with the knowledge of the risk or danger. Whether or not the worker has assented to the risk is a question of fact not law.
The House of Lords reversed the Court of Appeal decision, holding that there was no evidence to find that the worker consented to the particular risk that caused his injuries.
Sydney, Australia
1300 00 2088
ON 21 JULY 1989, the Dust Diseases Tribunal of NSW (DDT) http://www.dustdiseasestribunal.lawlink.nsw.gov.au/ was established through the enactment of the Dust Diseases Act 1989 http://www.legislation.nsw.gov.au/viewtop/inforce/act+63+1989+FIRST+0+N/.
The DDT is a specialist tribunal with the exclusive jurisdiction to determine damages claims for death or injury arising from dust-exposure related diseases such as asbestosis and mesothelioma. The tribunal’s special purpose is to serve the interests of justice by expediting claims in circumstances where the claimants are in the advanced stages of illness.
The first judge to hear a case in the tribunal was Judge J L O’Meally AM RFD a tribunal Member (1989 to 1995), Senior Member (1995 to 1998) and President (1998 to 2011).
The Tribunal’s current judges are:
The court is situated at 12th Floor, John Maddison Tower, 88 Goulburn Street, Sydney NSW 2000. For all enquiries call (02) 9377 5440.
Sydney, Australia
1300 00 2088
ON 16 JULY 1965, the High Court of Australia delivered Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 (16 July 1965).
http://www.austlii.edu.au/au/cases/cth/HCA/1965/34.html
Where a plaintiff has made out a prima facie case that his or her incapacity was the result of the defendant’s negligence, the onus of adducing evidence that the incapacity was to do with a pre-existing condition, or that the incapacity would have in any event resulted from the pre-existing condition, rests with the defendant. However, the burden remains on the plaintiff on the whole of the evidence to satisfy the court or tribunal of the extent of the injury caused by the defendant’s negligence.
Sydney, Australia
1300 00 2088
Lawyers in NSW are banned from advertising personal injury services.
According to the NSW Law Society, the use of the following words is banned in lawyers’ advertising:
The relevant provisions which prohibit such advertising are contained in clauses 23 to 40 of the Legal Profession Regulation 2005 and clauses 74 to 80 of the Workers Compensation Regulation 2003.
Clause 24 of the Legal Profession Regulation 2005 provides:
24 Restriction on advertising personal injury services
(1) A barrister or solicitor must not publish or cause or permit to be published an advertisement that promotes the availability or use of a barrister or solicitor to provide legal services if the advertisement includes any reference to or depiction of any of the following:
(a) personal injury,
(b) any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury,
(c) a
“personal injury legal service” (that is, any legal service that relates to recovery of money, or any entitlement to recover money, in respect of personal injury).
Maximum penalty: 200 penalty units.
(2) A contravention of this clause by a barrister or solicitor is declared to be professional misconduct.
Note : A contravention of clause 75 of the Workers Compensation Regulation 2003 can also be a contravention of this clause.
(3) Evidence that a barrister or solicitor has been convicted of an offence under this clause or under clause 75 of the Workers Compensation Regulation 2003 is sufficient evidence of a contravention of this clause by the barrister or solicitor for the purposes of any proceedings under Chapter 4 (Complaints and discipline) of the Act.
Clause 23 provides:
23 Definitions
In this Division:
“advertisement” means any communication of information (whether by means of writing, or any still or moving visual image or message or audible message, or any combination of them) that advertises or otherwise promotes a product or service, whether or not that is its purpose or only purpose and whether or not that is its effect or only effect.
“personal injury” includes pre-natal injury, impairment of a person’s physical or mental condition, and disease.
“publish” means:
(a) publish in a newspaper, magazine, journal, periodical, directory or other printed publication, or
(b) disseminate by means of the exhibition or broadcast of a photograph, slide, film, video recording, audio recording or other recording of images or sound, either as a public exhibition or broadcast or as an exhibition or broadcast to persons attending a place for the purpose of receiving professional advice, treatment or assistance, or
(c) broadcast by radio or television, or
(d) display on an internet website or otherwise publicly disseminate by means of the internet, or
(e) publicly exhibit in, on, over or under any building, vehicle or place or in the air in view of persons in or on any street or public place, or
(f) display on any document (including a business card or letterhead) gratuitously sent or gratuitously delivered to any person or thrown or left on any premises or on any vehicle, or
(g) display on any document provided to a person as a receipt or record in respect of a transaction or bet.
“solicitor” includes the following:
(a) a partnership of which a solicitor is a member (but only if the business of the partnership includes business of a kind ordinarily conducted by a solicitor),
(b) a solicitor corporation,
(c) an incorporated legal practice.
Sydney, Australia
1300 00 2088
ON 26 JUNE 1990, the High Court of Australia delivered Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 (26 June 1990).
http://www.austlii.edu.au/au/cases/cth/HCA/1990/20.html
When assessing damages for events that would or would not have occurred, or might or might not have occurred, the approach is different to that events which have occurred.
A court determines on the balance of probabilities whether or not an event has occurred. For events that would have or might have occurred, the court is to adjust the award of damages to reflect the degree of probability of that event occurring.
Sydney, Australia
1300 00 2088
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