by David Kidd | Jun 19, 2015 | Uncategorized
Sudden incapacitating events Contact kiddlrs@optusnet.com.au for further cases e.g those involving heart attacks and also for a free trial of the publication In Leahy v Beaumont (1981) 27 SASR 290 (not on austlii) a driver suffered an attack of cough syncope leading to his temporary unconsciousness causing his vehicle to hit a shop. His car was travelling quite slowly and given that he had 6-8 seconds motorup.com.au cases canvassed in judgment. See Matijevic v Taylor and Insurance Australia Group 23/9/13 [2013] ACTSC 192 per Master Mossop. P was injured when D’s vehicle collided head on into hers after drifting onto the wrong side of the road. D argued that he had suffered an episode of cough syncope, – uncontrollable coughing leading to a blackout. Having reviewed the medical evidence the Trial Judge found that whilst it was possible D had suffered from cough syncope, that the likelihood of this was extremely rare. D’s complaint of feeling ‘fluey’ falling short of the serious respiratory ailment conducive to cough syncope. The Trial Judge accepted D’s evidence that he had been coughing prior to the accident but not that he lost consciousness as a result of the coughing. P succeeded in her claim because it remained more likely than not that the accident was caused by inattention or other failure to maintain proper control over the vehicle during a period when the [1st D] could have had proper control of the vehicle rather than being a consequence of an event of actual unconsciousness over which the [1st D] had no control (77). [Dowsing] “12 A sudden and unheralded incapacitating event, such...
by David Kidd | Jun 19, 2015 | Uncategorized
Dismissal – Sexual/Pornographic issues Contact kiddlrs@optusnet.com.au for recent 2014-2015 case summaries and for trial of full product. [2010] FWA 7846 Vic Lambert v ZTE (Australia) P/L (relevance of worker’s subsequently discovered (i.e. post-dismissal) sexualized chat room discussions and images on work/home computer whilst off work and during work time considered – images would not have been subject to any censorship classification or restrictions on their publication – A’s conduct, to the extent it may have been done at work, would have justified a warning – principles in Lane v Arrowcrest considered from paragraph 123 – “the subsequently discovered material does not provide a valid reason for termination but it could affect the length of likely future employment keystonegate redundancy which is the main issue in contention in these proceedings” @114) [2010] FWA 8011 NSW Rowland & Rollason v Austar Coal Mine P/L (dismissal not harsh etc when A’s drank on-site contrary to policy, and when they engaged in sexual harassment of another employee by exposing their genitals and drawing crude pictures) [2010] FWA 8071 NSW Naden v ACM Group … (R dismissed A, a team leader, for allegedly breaching its sexual harassment policy by asking a female worker (S) in his team to ‘crack’ his back by standing on it to relieve his discomfort – A claimed that S volunteered to help him – the R dismissed A without even discussing the issue with S – S was not called to give evidence – other evidence corroborated A’s claim that S volunteered – dismissal harsh etc) [2010] FWA 1822 Qld Green v MSS Security P/L (the A, who was...
by David Kidd | Jun 19, 2015 | Uncategorized
Death [See also Wrongful Death] Articles Kutner P, ‘Reforming Wrongful Death Law’ (1999) 7 Torts Law Journal 46 Children (of) Hole v SGIC 4/5/90 [1990] SADC 1591 Burnett J – P(f) homemaker injured MVA July 1985 when 25 (29 at trial). Fractured pelvis, involving a separation of the front of the pelvis and of the sacro-iliac joints, fractured right clavicle and suffered lacerations to the knee and ankle. 20% loss of total body function. Six months pregnant at the time and the child in her womb was fatally killed as was her mother. Emotional difficulties (reactive depression/grieving) ‘serious, debilitating and distressing’. With pain she managed to go on to work at kindergarten and meatworks. PNEL $15,000; FNEL $35,000; PEL $1,500; FEL $45,000; specials $1,491.30; airfare for husb to visit $1,000; BvF $3,500; Total $102,491.30 Not on austlii In Karamesinis v Australian Crowd Control Services 1/5/12 [2012] VCC 507 Saccardo J awarded each of motorup.com.au of an altercation with a crowd controller at a nightclub. The Ps had already lost their only other child (another son) in tragic circumstances two years earlier in 2005. Both P’s were suffering significant mental issues before the death of their oldest son as a result of the death of their youngest son. However, the subsequent death crushed them, and they are unlikely to recover from their severe psychiatric symptoms including PTSD, anxiety and depression. Contingency of premature death [See Contingencies – Premature death/life expectancy] Employee See Barclay v Penberthy; Penberthy v Barclay 2/10/12 [2012] HCA 40 where in the case of a plane crash caused by engine failure and...
by David Kidd | Jun 19, 2015 | Uncategorized
Summaries of motor manslaughter cases from Kidd’s Traffic Law (criminal) see www.kiddslaw.com for more. Email kiddlrs@optusnet.com.au See R v Borkowski 15/4/09 [2009] NSWCCA 102 [52 MVR 528] where CCA reviewed a sentence for motor manslaughter in the case of a 37y.o. involved in street racing resulting in the deaths of two people. “The sentence imposed upon the [R] was made up of a fixed term of imprisonment of 4 years from 31 July 2007 on the first count, relating to the death of Mrs Howle, and a term of imprisonment made up of a non-parole period of 4 years and a balance of term of 3 years from 31 July 2009 on the second count, relating to the death of Mr Howle. As a consequence the [R] is eligible to be released to parole on 30 July 2013. The [R] was disqualified from driving for a period of 6 years from 5 November 2008”@14. Such sentence was considered too light, but was not overturned for various reasons. In SBF v R 10/9/09 [2009] NSWCCA 231 [(2009) 53 MVR 438] the CCA compared the offences of aggravated dangerous driving causing death and motor vehicle manslaughter, finding the latter to be the more serious offence. See discussion from paragraph 104. In Gallagher v State of Tasmania 18/9/09 [2009] TASSC 84 [54 MVR 6] the CCA, by majority, dismissed A’s appeal against a sentence of four years imprisonment with a two year and eight month non-parole period for causing death by dangerous driving. A, who was 21, and his friend, Anderson, dangerously raced their cars at high speed over...
by David Kidd | Jun 19, 2015 | Uncategorized
[2014] FWC 988 Qld Stewart v Amcor Excavations (the A, a labour hire employee, was placed with a client who no longer wanted him – A was surplus to R’s needs. “The Applicant’s skill profile was not in demand at any other site, it was powerless to return the Applicant to the original client and its work site, and the Employer at the same time was reducing its employment levels significantly in other areas in which it had direct employees” @46 – R “no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Employer’s enterprise, as it is broadly conceived” @47 – R claimed that the decision to make A redundant could not be regarded as a ‘major change’ under the relevant Modern Award’s consultation provision arguing “that the redundancy of a single employee alone does not constitute a major change” @19 – the plural ‘employees’ was used in the award, but such held not to negate the application of the award to one employee – R also argued that a “major change is ‘where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology” @26 – according to R, “there was no decision taken by the Employer to introduce a major change that had any significant effects. The Employer encountered a set of circumstances imposed upon it by an external event, and responded at a discrete level, but this could not amount to a major change of the type the consultation clause envisages” @31 – held that “consultation provisions in...
