by David Kidd | Apr 13, 2015 | Uncategorized
FWA Cth s394(3) – Time issues/exceptional circumstances (another application made) [2015] FWC 380 SA Nash v Discovery Holiday Parks Barossa (the A mistakenly lodged a general protections application – upon learning of this A, within three days, lodged late s394 application 26 days late – exceptional circumstances found) [2015] FWC 632 Vic Smith v MacFarlane Generators (the A was dismissed on 24 October 2014 and brought general protections application 14 days later which he discontinued on 28 November, the same day he lodged these unfair dismissal proceedings – A’s “lack of knowledge about the differences between an unfair dismissal remedy application and a General Protections application was the reason for the delay” @22 – “this matter is somewhat finely balanced, with it being moved into Mr Smith’s favour for the reason that there is a demonstration of a desire, and somewhat strongly, on his part to challenge his dismissal from an early point. The evidence shows that he was acutely aware of the statutory time limit and wanted to ensure that he met it” @46 – extension granted) FWA Cth s394(3) – Time issues/exceptional circumstances (bereavement) [2015] FWC 780 NSW Nudd v Commonwealth Bank (“the combination of the obvious stress and anguish of her father’s illness and his ultimate death and the understandable confusion arising from errors made by the applicant’s representatives, constitute ‘exceptional circumstances’” @11) FWA Cth s394(3) – Time issues/exceptional circumstances (combination of factors) [2015] FWCFB 1830 Galati v Veneto Club (s366(2) case – Appeal allowed – “This is a case where there is in evidence a combination of ordinary factors some of which individually may not...
by David Kidd | Apr 13, 2015 | Uncategorized
See www.kiddslaw.com for more Inconsistency of laws See Perisher Blue Pty Ltd v Nair-Smith 9/4/15 [2015] NSWCA 90 where inconsistency between s74 of Trade Practices Act and NSW Civil Liability Act found. “Once it is accepted that s 74(1) regulates the quantification of damages, the question becomes how, precisely, does it do that. On its face, s 74(1) says nothing about how damages are to be assessed and quantified. Recourse must be had to the statement in Wallis that it confers entitlement to ‘full contractual liability’. The phrase ‘full contractual liability’ must be understood as a reference to the full amount of damages recoverable at common law undiminished by any State’s or Territory’s legislation and free from any intrusion by such legislation. The primary judge correctly held that Part 2 of the Civil Liability Act is directly inconsistent with s 74(1) of the Trade Practices Act and invalid to that extent. The damages the respondent can recover for breach of s 74(1) are to be determined in accordance with the principles applicable at common law and are not subject to the limitations contained within Part 2 of the Civil Liability Act” @193-194. NSW CLA s5 … Chairlift See Perisher Blue Pty Ltd v Nair-Smith 9/4/15 [2015] NSWCA 90 where, “On boarding a moving chair forming part of the appellant’s triple chairlift, the respondent was struck in the groin area from behind by the armrest of the chair” @1. R brought claim for damages in contract and negligence. Attendant breached duty of car owed to R by failing to observe the condition of the chair as it exited the bullwheel....
by David Kidd | Apr 13, 2015 | Uncategorized
Mechanical or car failure See www.kiddslaw.com for more See Maintenance of vehicle & Res ipsa loquitur Engines P was driving along highway when her engine cut out. Her car had power brakes but did not have power steering and no steering abnormality was found. She applied the brakes and tried to keep her vehicle straight, but was unable to keep it from pulling to the right where in the darkness of the night it came to a halt substantially on the incorrect side of the road in a diagonal position. She tried to restart the car unsuccessfully and left it with appropriate warning lights on. Another motorist warned oncoming traffic for her. Several averted colliding with P’s car, but D failed to avoid a collision. D was travelling below the 100 kph speed limit at 95-100 kph, but this was excessive in the circumstances. D failed to keep a proper lookout, as he had an unrestricted view ahead of at least 300 m, and failed to properly control his vehicle. He should have avoided hitting P’s car. D found wholly negligent. See also commentary at Res ipsa loquitur – Placing vehicle on incorrect side of road. FAI v Curtin & Duangprasert 8/8/97 [1997] QCA 241 Lee J (Full Court) Manufacturer’s liability See Middleton at Steering failure (mechanical) Repairer’s Liability See Repairer’s liability Speed “41 We all know that with increased speed, and especially at higher speeds, there is an increased risk of an accident in many situations. We all know that the chance of dealing safely with an unexpected event, such as mechanical failure, is...
by David Kidd | Apr 12, 2015 | Uncategorized
Cancer – Colorectal See O’Reilly v Western Sussex NHS Trust (No.6) 19/12/14 [2014] NSWSC 1824 where Garling J, in a UK Fatal Accidents Act claim, determined the deceased died two years earlier than he otherwise would have from colorectal cancer due to medical negligence. UK law applied. Widow’s (P) nervous shock claim based on witnessing husband’s declining health (including his collapsing at home) statute barred due to time limitations. Discussion of nervous shock claims by secondary victims. Claim would have failed even if brought in time. P would have been awarded general damages of $143,750 for PTSD and major depression, among other heads, if she had succeeded. Dust diseases – Causation See Van Soest v BHP Billiton Limited 17/6/13 [2013] SADC 81 where Parsons J found foreseeability and causation established where P, who worked as a painter and docker in the Whyalla ship yards for 12 weeks in 1962, inhaled asbestos dust and was diagnosed with mesothelioma in 2011. “The risks of asbestos were known, there were practicable means available to BHP to control the hazard presented by asbestos dust, their use would have minimized the risk to the plaintiff and therefore the resultant negligent exposure to asbestos dust caused or contributed to the plaintiff contracting mesothelioma” @722. The statutory presumptions contained in s 8 of the Dust Diseases Act 2005 Appeal on liability dismissed 19/12/14 in [2014] SASCFC 135. “BHP submitted that, at the time of the plaintiff’s employment, exposures below the relevant National Health and Medical Research Council recommended maximum allowable concentration were not perceived as dangerous. BHP argued that unless the plaintiff could show that the maximum...
by David Kidd | Apr 4, 2015 | Uncategorized
D lost control of his vehicle when he swerved onto incorrect side of the road to avoid hitting kangaroo at 3am in the morning. D collided with P who was coming from the opposite direction. Unclear whether kangaroo came from D’s left or right. “As the animal was in the middle of the road and the impact was with the front nearside bumper-bar … then it does seem that the impact occurred when … [D’s] vehicle was already to a considerable extent on its incorrect side of the road. I am not satisfied that at the time the kangaroo came into the … [D’s] view the [P’s] lights were already visible … and so I would not be prepared to find that he knew or should have known that he was diverging into the [P’s] path … [D] offers no explanation of being on the wrong side of the road when it appears that there was in all the circumstances at least an equally safe course open to him, namely to drive straight ahead or to swerve to the left in order to avoid the kangaroo. In crossing to the incorrect side of the roadway and at the same time failing to avoid collision with the kangaroo … [D] put himself in the position where he was likely to lose control of his vehicle … [and pose a danger to other traffic] … I do not think that … [P] at the time when … [D] came into view … would have been in a position to observe that there was anything untoward [up ahead] … The question remains...
