Tag Archives: FAMILY LAWYER

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

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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Contract, LAW FIRM, Property Law

Contract for sale of land – Refusal by purchaser to complete – Anticipatory breach – Specific performance – Recision – Damages

Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21; (1976) 136 CLR 444 (30 April 1976).

“Vendor and Purchaser – Sale of land – Contract of sale – Refusal by purchaser to complete – Anticipatory breach – Suit for specific performance by vendor – Continued refusal by purchaser to complete – Whether vendor entitled to rescind and claim damages.”

A contract may be rescinded by a vendor for repudiation whilst an action for specific performance is on foot if the purchaser refuses to complete and acts as though it intends to be no longer bound by the contract.

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Sydney, Australia

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Appeals, Evidence, LAW FIRM

Appeal – rehearing

Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 (30 April 2003).

“Appeal – Rehearing – Review of findings of fact based on trial judge’s assessment of credibility of witnesses – Whether findings inconsistent with incontrovertibly established facts – Power of appellate court to set aside findings.

Appeal – Issue not raised at trial – Where argued that expert report based on matters not proved or supported by the evidence – Whether re-examination of facts by appellate court appropriate.

Appeal – Rehearing – Substitution of judgment of appellate court for that of trial judge – Whether re-trial an appropriate remedy.”

The court affirmed the principles, developed over many previous cases, to be applied by appellant courts when considering whether or not to overturn the findings of credit made by a trial judge.

An appellate court must be satisfied that the findings are “glaringly improbable” or “contrary to compelling inferences”; or that the judge has “failed to use” or “palpably misused” his or her advantage or acted on facts which were inconsistent with the evidence or were glaringly improbable..”

http://www.austlii.edu.au/au/cases/cth/HCA/2003/22.html

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Criminal Law, Criminal Procedure, LAW FIRM

Stay of proceedings – Inherent jurisdiction – Abuse of process – Medical practitioners – Complaints

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485 (29 April 1993).

Stay of proceedings – Inherent jurisdiction – Abuse of process – Medical practitioners – Complaints

http://www.austlii.edu.au/au/cases/cth/HCA/1993/77.html

The NSW Court of Appeal had granted a stay of proceedings concerning new complaints made against three medical practitioners regarding their treatment of patients at the Chelmsford Private Hospital in Sydney on the grounds that the new complaints raised issues overlapping with earlier complaints such that they were so unfairly and unjustly oppressive that they constituted an abuse of process.

The High Court affirmed the Court of Appeal’s decision, holding that the court has the inherent power or jurisdiction to stay proceedings as an abuse of process if the continuation of the proceedings would involve unacceptable injustice or unfairness.  The court also held that the grounds upon which such a stay is granted is not limited to matters where the proceedings are brought for an improper purpose or where there is no possibility of a fair hearing.

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Sydney, Australia

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LAW FIRM, Legislation, Media Law

Statutes – Construction – Media law – Trade law

Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 (28 April 1998).

“Statutes – Construction – Reconciliation of conflicting provisions – Intention of legislature – Presumption that provisions intended to achieve consistent goals – Leading and subordinate provisions – Grammatical meaning and legal meaning.

Statutes – Construction – Acts done in breach of a condition regulating a statutory power – Whether invalid – Mandatory and directory provisions – Purpose-based test.

Media law – Television – Regulation of programming – Australian Broadcasting Authority – Standard prescribing Australian content requirements – Whether inconsistent with legislative requirement that functions be performed consistently with Australia’s international obligations.

Media law – Television – Regulation of programming – Australian Broadcasting Authority – Power to make standards that “relate to … the Australian content of programs” – Whether restricted to standards conferring preferential treatment.

Trade law – Australia New Zealand Closer Economic Relations Trade Agreement.”

http://www.austlii.edu.au/au/cases/cth/HCA/1998/28.html

Statutory construction is to start with an examination of the provision to be construed. When determining the validity of an act done in breach of a statutory provision, the test is “to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”, rather than to “use the elusive distinction between mandatory and directive requirements”.  The purpose is determined by consideration of “the language of the relevant provision and the scope and object of the whole statute.”

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Duty of Care, Insurance Law, LAW FIRM, Legislation, Negligence, Personal Injury

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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Damages, Duty of Care, Landmark cases, LAW FIRM, Personal Injury, Work injuries, Workers Compensation

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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Damages, Duty of Care, Insurance Law, LAW FIRM, Medical negligence, Negligence, Personal Injury, Professional negligence

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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Damages, LAW FIRM, Negligence, Personal Injury

Nagle v Rottnest Island Authority [1993] HCA 76 | 21 April 1993

ON 21 APRIL 1993, the High Court of Australia delivered Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423; (1993) Aust Torts Reporter 81-211; (1993) 112 ALR 393; (1993) 67 ALJR 426 (21 April 1993).

http://www.austlii.edu.au/au/cases/cth/HCA/1993/76.html

Nagle became a quadriplegic after diving into a swimming hole and striking his head on a submerged rock.  It was known to Rottnest that visitors engaged in this activity.

Rottnest was liable to pay Nagle damages as it had breached its duty of care to Nagle to warn him of the risk of submerged rocks.

The risk was foreseeable: “Whether small or not, the risk was certainly not far-fetched or fanciful.”

The accident was cased by a failure on the part of Rottnest to erect a sign.

The Civil Liability Acts have since altered the obligations and responsibilities of public authorities and occupiers in such situations.

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Sydney, Australia

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Damages, LAW FIRM, Personal Injury, Workers Compensation

Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15

ON THIS DAY in 2007, the High Court of Australia delivered Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 234 ALR 131; 81 ALJR 919 (19 April 2007).

http://www.austlii.edu.au/au/cases/cth/HCA/2007/15.html

When assessing damages, life expectancy is to be calculated with reference to the ABS projected tables (as opposed to historical tables).

Statutory payments for treatment and rehabilitation expenses are to be deducted after making an apportionment for contributory negligence.

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