Tag Archives: SYDNEY LAWYERS

Duty of Care, Negligence, Personal Injury, Sydney Law Firms, Torts

Stuart v Kirkland-Veenstra [2009] HCA 15 | 22 April 2009

Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/15.html

“TORTS – Negligence – Duty of care – Where Mental Health Act 1986 (Vic), s 10 empowered police to apprehend person who “appears to be mentally ill” if reasonable grounds for believing that person had recently attempted suicide or likely to do so – Where police came upon man who appeared to have been contemplating suicide but showed no sign of mental illness – Interaction of common law and relationship established by s 10 – Whether duty of care to prevent foreseeable harm to man at own hand – Relevance of conditions engaging exercise of statutory power – Relevance of fact that duty alleged is duty to protect person from self-harm – Relevance of general rule against duty to rescue – Relevance of vulnerability of particular class of persons – Relevance of control over source of risk to persons.

TORTS – Negligence – Duty of care – Where duty alleged to arise in context of power conferred by Mental Health Act 1986, s 10 – Whether preconditions to existence of power established on facts – Whether common law duty could exist in absence of relevant power.

TORTS – Breach of statutory duty – Relevance as alternative to action alleging breach of common law duty of care – Principles relevant to determining legislative intention that cause of action be available – Relevance of legislative provision for special measures to protect identifiable class of persons or property – Whether existence of discretion to exercise power inconsistent with existence of statutory duty.

STATUTES – Interpretation – Whether person who has attempted suicide to be equated with person “mentally ill” – Relationship between attempted suicide and mental illness – Understanding at common law of relationship between suicide and mental illness.

WORDS AND PRRASES – “mentally ill”.

Crimes Act 1958 (Vic), ss 457, 463B.
Mental Health Act 1986 (Vic), ss 3, 8, 10.
Wrongs Act 1958 (Vic), Pt III.”

The court decided that two police officers did not owe a duty of care to a man who took his life; nor to his surviving spouse. Earlier in the day of the deceased’s death the officers had observed an apparent suicide attempt by the deceased but were satisfied that he sounded rational and was responsive to their questions.

The law does not create an obligation to rescue another from harm and in this case there were no special features outside of the general rule.

As the police officers had not formed the view that the deceased was mentally ill, they had no power to apprehend him and have him assessed under the Mental Health Act.

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Compensation to relatives

Dey v Victorian Railways Commissioners [1949] HCA 1

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (22 February 1949).

“Workers’ Compensation – Injury by accident arising out of or in course of employment – Death of worker – Negligence of employer – Option of dependants to apply for compensation or take other proceedings – Award of compensation obtained by widow on behalf of herself and children – Effect of award as barring claim by dependants under Lord Campbell’s Act – Workers’ Compensation Acts 1928- 1946 (No. 3806 – No. 5128) (Vict.)* – Wrongs Act 1928 (No. 3807) (Vict.), Part III. – The 1946 Workers’ Compensation Rules, rr. 8, 81.*
Practice – Supreme Court (Vict.) – Dismissal of action – Abuse of process – Inherent jurisdiction – Rules of the Supreme Court (Vict.), Order XXV., rr. 2, 4.”

http://www.austlii.edu.au/au/cases/cth/HCA/1949/1.html

A widow who had received a workers compensation award for her late husband’s death was not entitled to maintain a compensation to relatives action in her own right but the infant children were competent to sue by their next friend.

Per Dixon J at 91:

“The application [to dismiss proceedings on the grounds of being frivolous, vexatious and abuse of process] is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

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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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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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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Ridgeway v R [1995] HCA 66 | 19 April 1995

ON THIS DAY in 1995, the High Court of Australia delivered Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 (19 April 1995).

http://www.austlii.edu.au/au/cases/cth/HCA/1995/66.html

A conviction for drug importation was quashed after the High Court excluded certain evidence that was unlawfully obtained by the police in a controlled operation. However, the court did not go as far as stating that a defence of entrapment exists under Australian law if a person voluntarily and with the necessary intent commits an unlawful act induced by another.

The Commonwealth Parliament subsequently amended the Crimes Act to make controlled operations legal in order to protect such evidence from being ruled inadmissible.

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Constitutional law, Family Law, LAW FIRM

Harris v Caladine [1991] HCA 9 | 17 April 1991

ON THIS DAY in 1991, the High Court of Australia delivered Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991).

Parts of the Family Law Act 1975 (Cth) allowing Judges of the court to make rules delegating judicial powers to registrars and non-judical officers were held to be valid and not in breach of the doctrine of separation of powers found in s71 and Chapters II and III of the Australian Constitution.

Family Court Judges may make rules and delegate their powers as long as they continue to bear the major responsibility for the exercise of judicial power.  The delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions must be subject to review or appeal by a Judge.

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Sydney, Australia

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Contract, Criminal Law, Equity, Evidence, LAW FIRM, Law reform, Legislation, Property Law, United Kingdom, Wills and Probate

Statute of Frauds 1677 | 16 April 1677

ON 16 APRIL 1677, the English Parliament enacted the Statute of Frauds 1677.

This Act required certain dealings with real property, sale of goods, estates, trusts and marriage be reduced to writing and signed in order to avoid fraud or perjury.

The provisions of the Act have since been incorporated into many pieces of legislation around the common law world.

 

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Sydney, Australia

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Constitutional law, Environmental Law, LAW FIRM, Legislation

Inc Pty Ltd v Commonwealth (“Fraser Island case”) [1976] HCA 20 | 14 April 1996

ON THIS DAY in 1976, the High Court of Australia delivered Murphyores Inc Pty Ltd v Commonwealth (“Fraser Island case”) [1976] HCA 20; (1976) 136 CLR 1 (14 April 1976).

The court held that the Commonwealth could validly legislate over the environment through its trade and commerce powers under the Constitution.  As a result, sand mining licensed by the Queensland Government was prohibited on the Fraser Island – the largest sand island in the world.

Fraser Island later became part of the Register of the National Estate, National Heritage List and the World Heritage List.

http://www.austlii.edu.au/au/cases/cth/HCA/1976/20.html

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Sydney, Australia

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Civil procedure, Costs, LAW FIRM

Cachia v Hanes [1994] HCA 14 | 13 April 1994

ON THIS DAY in 1994, the High Court of Australia delivered Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; (1994) 120 ALR 385; (1994) 68 ALJR 374 (13 April 1994).

Costs recoverable from an unsuccessful party do not include time spent by a successful litigant who is not a lawyer.

Costs are recoverable under the indemnity principle: for money paid and liabilities incurred for professional legal services. No such costs are incurred when a non-lawyer represents themselves.

http://www.austlii.edu.au/au/cases/cth/HCA/1994/14.html

Lawyers

Sydney, Australia

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