by David Kidd | Jun 26, 2014 | Uncategorized
s43(7) – Lump sum compensation (aggravation …) WCT43/14 Baker (W suffered a right ankle ligament strain at work in 2007 and it was determined in 2008 he had a permanent impairment of 10% – he had a slightly increased vulnerability to further injury as a result – in 2011 he “slipped at work … [and] suffered a ‘right ankle strain/partial tear of lateral ligaments’” @3 – “aggravation may mean ‘an increase in gravity or seriousness.’ Acceleration relates to the progress of a disease itself, and is thus not applicable to the present circumstances of acute traumatic injury. Exacerbation has a similar meaning to aggravation in the sense of requiring some worsening of gravity or seriousness. Deterioration connotes a progressive worsening of an ongoing condition. Recurrence means that a prior injury has happened again or recurred” (footnotes omitted) @27 – in applying the s43(7)(a) test the “lack of any ongoing functional impairment and of symptoms for over two years prior to the second injury, is … a relevant, but not determinative, factual circumstance to be taken into account” @31 – “the word ‘injury’ in s 43(7)(a) is not used only in the sense of functional or symptomatic injury, but includes all ongoing tissue damage or pathology” @31 – deterioration, exacerbation, recurrence and acceleration excluded on facts – “both work injuries probably involved partial tears of the same ligaments but to different degrees of severity, despite their different classifications as a strain or partial tear; and … both 2007 injuries were additive contributors to the 2011 injury” @42 – “the second work injury did consist of an increase in the gravity...
by David Kidd | Jun 16, 2014 | Uncategorized
Boomgate See Livsey v Australian National Car Parks Pty Ltd8/12/14 [2014] NSWDC 232 where D not found negligent when patron walked under boomgate and was hit on the head as boomgate lowered.
by David Kidd | Jun 11, 2014 | Uncategorized
Commissions [2014] FCCA 2822 Tiago v John Hopkins Property Pty Ltd (the A claimed for commission she claimed was owing – cl. 17 of the Real Estate Industry Award deals with payment of commission after termination of employment – no commission found to be payable as the employment contract specified otherwise) Dismissal – Mistake by employer [2014] FWC 8877 NSW Yap v Tata Consultancy Services (“Having failed to locate domestic work within Mr Yap’s skill set Mr Yap was dismissed. TCS’s understanding of Mr Yap’s preference for domestic work was a mistake. It was careless. Mr Yap had a preference for domestic work but it was never the case that he would have refused overseas work if that was all that was available. As a result of that misunderstanding no overseas search was properly and appropriately conducted and Mr Yap’s employment was terminated” @10 – no valid reason for dismissal – dismissal harsh...
by David Kidd | Jun 9, 2014 | Uncategorized
See Arentz v Workers' Compensation (Dust Diseases) Board15/8/14 [2014] NSWDC 205 where Neilson DCJ stated that “the recovery of damages at common law does no (sic) affect a worker's right to recover statutory benefits under the Dust Act and, therefore, a worker's common law damages are to be reduced to reflect that entitlement” @30. “In the current case I do not know if any deduction was made by Amaca from its assessment of the plaintiff's damages which led to its offer of compromise. If a deduction were made I do not know how it was calculated. The evidence is silent on those issues. As I have already stated, I can not find that no such deduction was made. Clearly, Amaca ought to have made a deduction. It runs the risk of paying twice” @31. P’s “right to statutory entitlements is not defeated by his common law settlement or by any default of Amaca in doing what the law required it to do”...
by David Kidd | Jun 1, 2014 | Uncategorized
Illegal enterprise In Quine v Keerasawat 27/10/14 [2014] WADC 150 per Herron DCJ, P was rendered a quadriplegic when the vehicle in which he was a passenger left the road and hit a tree. He had no recollection of the circumstances leading up to the accident. D, who was driving, denied owing P a duty of care alleging both were engaged in a joint illegal enterprise at the time of the crash and no duty was therefore owed to P. The defence pursuant to the Offenders (Legal Action) Act 2000 (WA) was also considered. His Honour found that P was so engaged and dismissed his claim on both grounds. D had stolen the car that day, although P was not involved in the theft. By reason of a series of inferences His Honour rejected P’s argument that he was unaware the vehicle was stolen. P had a record for car stealing and mixed with a crowd that stole cars. D left a gathering to “get a car” and returned with a vehicle no one had seen before. P and D had known each other for years. After the crash P was wearing latex gloves consistent with a desire not to leave fingerprints in the stolen car. The test in Miller v Miller (2011) CLR 446 was applied – P was complicit in the theft and was therefore not owed a duty of care. Unlike the P in Miller v Miller he did not attempt to withdraw from the illegal enterprise prior to the...
