Category Archives: Torts

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

Civil Liability Act 2002 (NSW) | 18 June 2002

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.

 

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Sydney, Australia

1300 00 2088

Aviation law, Damages, LAW FIRM, Torts

Barclay v Penberthy

ON 2 OCTOBER 2012, the High Court of Australia delivered Barclay v Penberthy [2012] HCA 40 (2 October 2012)

1.It was confirmed that the rule in Barker v Bolton [1808] EWHC KB J92; (1808) 1 Camp 493 [170 ER 1033] continues to form part of the common law of Australia so that the death of a person does not in and of itself create a cause of action giving rise to a claim for damages. The court held that the employer who lost two employees in an aviation accident could not recover damages for their death even thought their death was caused by the negligence of others.

2.Confirmed that an action per quod servitium amisit (“per quod“) continues to form part of the common law of Australia so that an employer may be awarded damages for the loss of services of an injured employee. The court held that the employer could recover damages from the negligent pilot, his employer and aeronautical engineer for the market value of the loss of the services of its injured employees, calculated with reference to the cost of substitute labour less the wages no longer payable to the injured employees.

3.Held that the negligent pilot and employer owed a duty to the employer of the passengers no to cause it economic pure loss.

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

Strong v Woolworths Ltd [2012] HCA 5

ON 7 MARCH 2012, the High Court of Australia delivered Strong v Woolworths Ltd [2012] HCA 5 (7 March 2012).

http://www.austlii.edu.au/au/cases/cth/HCA/2012/5.html

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Sydney, Australia

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Appeals, LAW FIRM, Torts

Su v So, Verekers Lawyers v So [2010] NSWCA 119

Su v So, Verekers Lawyers v So [2010] NSWCA 119 (27 May 2010).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/119.html

Lawyers 1300 00 2088

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48

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).
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Damages, Family Law, LAW FIRM, Torts

Magill v Magill [2006] HCA 2006

ON 9 NOVEMBER 2006, the High Court of Australia delivered Magill v Magill [2006] HCA 51; (2006) 231 ALR 277; (2006) 81 ALJR 254 (9 November 2006).

http://www.austlii.edu.au/au/cases/cth/HCA/2006/51.html

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Sydney, Australia

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Landmark cases, LAW FIRM, Medical negligence, Negligence, Personal Injury, Torts

Harriton v Stephens [2006] HCA 15

ON THIS DAY in 2006, the High Court of Australia delivered Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52; (2006) 226 ALR 391; (2006) 80 ALJR 791 (9 May 2006).

Harriton, a child born with profound disabilities, brought an action against her mother’s doctor in negligence for a failure to warn her mother of the risk of her being born with such disabilities due to the mother’s contraction of the rubella virus during the pregnancy. Her mother said she would have terminated the pregnancy if she had been advised of the risks.

Harriton sought damages for past and future medical treatment and care, general damages and loss of income and had been unsuccessful before the Supreme Court of NSW and NSW Court of Appeal.

The High Court refused the appeal, holding that there was no legally recognisable damage as it could not be determined that the child’s life represented a loss, deprivation or detriment compared with the life being terminated; and the law cannot make comparisons with the life of an able bodied child or a notional life without disabilities.

http://www.austlii.edu.au/au/cases/cth/HCA/2006/15.html

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Sydney, Australia

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Civil procedure, Contract, LAW FIRM, Leases, Practice and Procedure, Torts

Commex Communications Corporation Pty Ltd v Cammeray Investments Pty Ltd & Anor [2005] QSC 394

Commex Communications Corporation Pty Ltd v Cammeray Investments Pty Ltd & Anor [2005] QSC 394 (15 December 2005).

http://www.austlii.edu.au/au/cases/qld/QSC/2005/394.html

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

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