by David Kidd | Aug 30, 2018 | Damages assessments - Recent cases
See Smith v State of Victoria 27/8/18 [2018] VSC 475 where Dixon J dismissed D’s application for summary dismissal of P’s claim of breach of duty by police officers toward family members named in intervention orders. D claimed there was no duty of care owed by police officers to prevent family violence by repeat offenders. “Australian common law has not affirmatively recognised that a police officer can never owe a duty of care. Whether a police officer does owe a duty of care in the terms identified in the amended statement of claim must necessarily be determined on a close analysis of the facts bearing on the relationship between the plaintiffs and the putative tortfeasor for whom the defendant is responsible”...
by David Kidd | Aug 20, 2018 | Fair Work Law & Annotated Act
[2018] FWCFB 4732 4 yearly review of awards – Proposed Norfolk Island Award (application for proposed interim award refused – “s.139(1)(g)(iii) is to be construed as either ‘an exception to the otherwise general operation of s.154 or as a specific statutory provision dealing with a question not sought to be addressed in that section’” @17 – “s.154 … does not require all modern award terms and conditions to operate uniformly throughout Australia; both limbs of s.154(1) are directed to the same general objective — to prohibit differences between entitlements in States or Territories as such, that is, to eliminate ‘State-based’ differences; and s.154(1)(b) ‘prevents the possibility that terms and conditions might apply (ie as a matter of general application) in one or some but not every State or Territory, thereby discriminating (facially at least) against employees in those States or Territories which are excluded’” @18 – “With effect from 1 July 2016, the Territory of Norfolk Island became a Territory within the meaning of s.154(1)(b)” @19 – the Full Bench therefore considered “whether the proposed Interim Award includes any terms and conditions of employment that ‘are expressed to operate in one or more, but not every, State and Territory’” @19 – “a coverage term is a term and condition of employment for the purposes of s.154(1)” @23 – “all the terms and conditions of employment included in the proposed Interim Award are State based difference terms within the meaning of s.154(1)(b) … It is unnecessary for us to express a view as to whether the terms and conditions included in the proposed Interim Award are State-based differences terms within...
by David Kidd | Aug 15, 2018 | Fair Work Law & Annotated Act
A decision of the Full Bench of the Fair Work Commission was just handed down relating to two issues under the Legal Services Award 2010. In [2018] FWCFB 4709 the Full Bench rejected a proposal that 26 weeks be ‘the specified period’ over which hours of work be averaged because there was no probative evidence whether the current Award provision allowing for the averaging of ordinary hours over 28 days was insufficient and whether the 26 week period was necessary. The Law Firms had submitted that employees under the Legal Services Award work side-by-side with qualified and admitted lawyers who are not covered by the Award. Therefore, they argued, it is reasonable and desirable that employees covered by the Award should be permitted to average hours of work over a 26 week period. Regarding leave entitlements of law graduates, a new clause 39 was substituted adequately and appropriately accommodating the various study leave requirements of PLT students and supervised training as well as those undertaking a graduate diploma. It reads: Special conditions of employment—Law graduate 39.1 A law graduate is entitled to paid study leave not exceeding a total of 20 days in any 12 month period to attend a course of instruction, and prepare for and attend examinations that relate to the practical legal training required for their admission to practise as an Australian lawyer. 39.2 Paid study leave may be taken for a period or periods agreed between the employer and employee. The employer will not unreasonably refuse to agree to a request by the employee to take paid study leave in accordance with this...
by David Kidd | Aug 12, 2018 | Damages assessments - Recent cases
See Masson v State of Queensland 23/7/18 [2018] QSC 162 where P “suffered hypoxic brain damage as a result of a severe asthma attack. It is alleged she would have avoided the injury if ambulance officers who attended upon her had administered adrenaline promptly to her. Their decision not to do so is said to have been contrary to Queensland Ambulance Service … guidelines and a breach of the QAS’s duty of patient care” @1. Henry J found no breach of duty stating “The asthma guideline did not require adrenaline to be administered. It prompted consideration of the administration of adrenaline. The administration of adrenaline was considered but rejected by reason of the concerning presence of tachycardia and hypertension. The presence of those conditions would have been regarded by a responsible body of opinion in the medical profession as supporting the view that Ms Masson’s high heart rate and high blood pressure, in the context of her overall condition, provided a medically sound basis to prefer the administration of salbutamol to the administration of adrenaline at the time of initial treatment. Opting to administer salbutamol in preference to adrenaline in those circumstances was a reasonable response to the known risks” @151. It “is important to bear in mind ambulance officers are not medical practitioners who are specialists in emergency medicine” @152. If breach of duty had been established “that breach was likely a material contributing cause of Ms Masson’s injury”...
