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Monday 7 April 2014 Insurance A Daily Bulletin listing Decisions of Superior Courts of Australia
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Executive Summary (1 minute read)
Reid v Commercial Club (Albury) Ltd (NSWCA) - negligence - costs - Calderbank offer - fall in auditorium - occupier not liable - measure of damages - appeal allowed in part
Boorer v HLB Mann Judd (NSW) Pty Ltd (NSWCA) - professional negligence - false information lodged with ASIC - accountants not liable - no loss established - appeal dismissed
Brown v Canberra Contractors Pty Ltd and Sutherlands Communication Services Pty Ltd (ACTSC) - work injury damages - worker injured in two consecutive accidents - employer liable for second accident - damages assessed
Carr v Tuggeranong Town Centre Pty Ltd (ACTSC) - limitation of actions - slip and fall at shopping centre - leave to join cleaner as defendant - extension of time granted
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Summaries with links (5 minute read)
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Court of Appeal of New South Wales Emmett & Gleeson JJA; Tobias AJA Negligence - remoteness of damage - appellant injured when she fell in auditorium occupied by club - appellant sued club in negligence - primary judge concluded club not liable and that, if it was liable, appellant would have been awarded damages of $54,399 - appellant appealed against dismissal of claim, costs orders and hypothetical quantification of damages - appellant challenged order for indemnity costs made against her and challenged primary judge’s decision on basis of actual or apprehended bias - ss5B, 5D, 13 & 15 Civil Liability Act 2002 (NSW) - s127(2)(c) District Court Act 1973 (NSW) - rr31.28 & 51.41 Uniform Civil Procedure Rules 2005 (NSW) - competency of appeal - threshold monetary value - held: “wrongheadedness” on procedural rulings was not actual or apprehended bias - appellant succeeded in challenge to indemnity costs order on basis of Calderbank offer and established misapplication of principle in Jones v Dunkel but that did not lead to an error in primary judge’s conclusion of no breach of duty - all other grounds of appeal failed - appeal allowed in part. Reid
Boorer v HLB Mann Judd (NSW) Pty Ltd [2014] NSWCA 100 Court of Appeal of New South Wales Macfarlan & Leeming JJA; Sackville AJA Professional negligence - appellant was director of unlisted public company - appellant sued accountants in negligence, alleging that they should not have lodged form notifying ASIC that directors had been appointed when they had not signed consent forms - appellant also alleged accountants ought to have warned him company might be trading while insolvent - appellant alleged accountants’ negligence caused his disqualification from managing corporations leading to damage to his reputation and income - primary judge found appellant failed to establish any breach of duty or causation - primary judge also found there had been no loss - s51 Australian Securities and Investments Commission Act 2001 (Cth) - ss201D, 201A, 204A, 204C, 205B, 206F, 327A, 533, 1308 & s1311 Corporations Act 2001 (Cth) - r51.53 Uniform Civil Procedure Rules 2005 (NSW) - held: challenge to primary judge’s findings of no loss failed - findings both inherently plausible and independent of any errors in fact-finding process relevant to breach of duty - outcome of balance of appeal would not affect findings - appeal dismissed. Boorer
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Brown v Canberra Contractors Pty Ltd and Sutherlands Communication Services Pty Ltd [2014] ACTSC 30 Supreme Court of the Australian Capital Territory Master Mossop Work injury damages - worker employed as labourer by first defendant - worker injured in two workplace accidents - worker claimed both defendants liable for first accident and that employer was liable for second accident - ss43(1)(c), 43(1)(2), 45 & 46 Civil Law (Wrongs) Act 2002 (ACT) - causation - appropriate award of general damages and damages for future economic loss - extent to which worker’s current condition was result of second accident - held: employer’s negligence established in respect of second accident - employer knowingly gave worker tasks which were unsafe for him in circumstances - no causally relevant negligence on other defendant’s part in first accident - worker not entitled to succeed in respect of first accident against employer which was not pleaded - no generic failure to warn - case against employer in respect of first accident failed - judgment for worker - damages assessed. Brown
Carr v Tuggeranong Town Centre Pty Ltd [2014] ACTSC 46 Supreme Court of the Australian Capital Territory Burns J Limitation of actions - plaintiff alleged she was injured when she slipped and fell in defendant’s shopping centre - plaintiff sought extension of time to join against cleaner - ss51(1) & 54 Civil Law (Wrongs) Act 2002 (ACT) - ss16B & 36 Limitation Act 1985 (ACT) - held: delay in commencing proceedings largely explained and not egregious - no prejudice to cleaner caused by delay - Court satisfied cleaner could receive fair trial - circumstances favoured grant of extension of time and leave to join cleaner as defendant . Carr
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