by David Kidd | 25 Jul 2015 | Uncategorized
Contact kiddlrs@optusnet.com.au for more. See also www.kiddslaw.com Sleeping/sleepy (Driving when) At wheel (did P consent?) Accident occurred when D fell asleep at wheel. “It was claimed on behalf of … [D], who was clearly guilty of negligence, that … [P] consented to the risk of the sort of injury that he suffered and also that … [P] was guilty of contributory negligence. To accept a lift from a driver in the early hours of the morning aware that the driver has not had any sleep during the immediate preceding hours was not suggested as in itself constituting either of the defences, rather it was suggested that once the [P] was told by the [D] during the journey that the [D] was sleepy, he should have instructed the [D] to stop the car and get some sleep. Whilst this would of course have been a counsel of perfection, the fact of the matter is that the [P] had no control at all over the [D]. He was there as a guest. There is no evidence one way or the other as to whether the [P] was awake or asleep, but the evidence of the [D] that the third man was asleep in the backseat is suggestive that the [P] was awake. There is no evidence that the [D] stopped the vehicle SY0-401 at any relevant time beforehand which would have enabled the [P] to abandon the enterprise and seek to get back to Queanbeyan some other way, which would have been difficult for him at the least … [P] did not consent to the risk of being injured in...
by David Kidd | 25 Jul 2015 | Uncategorized
email kiddlrs@optusnet.com.au for more. See www.kiddslaw.com [2010] FWA 3141 Vic Vicstaff P/L t/as Stratco v May & McFerran (alternative employment for truck drivers as production workers unacceptable given the different nature of the work and different hours – see Vicstaff commentary below) [2010] FWA 9303 Qld Baywater Products P/L v Inall (R in financial difficulty but not to such an extent that it cannot make redundancy payment – R found A acceptable alternative employment – “The previous position and the new https://www.acheterviagrafr24.com/acheter-viagra-en-ligne/ position are covered by the same Award. Although there is a different mix of duties in the new position, there are no duties in the new position that were not performed by Mr Inall in the old position. Further, there are no duties that Mr Inall could not have been lawfully and reasonably required to perform under the Award which covered his employment in both the old and new position” @46) [2011] FWA 295 Vic Affinity Risk Partners (Brokers) (worker had one year and eight days service – his job made redundant due to client of A deciding to do work in-house – client immediately employed worker on six month contract – W did not lose any time from work and later found a suitable job – redundancy pay reduced from four to one week) [2011] FWA 4823 NSW Nowra Family Support Services Inc. (“the offer of employment on less than a retrenched employee’s previous grading and salary would not prima facie be regarded as ‘acceptable’ employment for the purposes of s.120(1)(b)(i)” @16 – the R’s role in obtaining A acceptable alternative employment was “peripheral and certainly...
by David Kidd | 22 Jul 2015 | Uncategorized
[2015] FWC 482 NSW Schneider v Apollo Motorhome Holidays (A’s discovery “of information relevant to her dismissal on the grounds of redundancy which caused her to doubt the genuineness of that redundancy was sufficiently unusual to constitute exceptional circumstances” @19 – no extension of time granted, however, as A “took no action whatsoever to contest 312-50 or even question her dismissal within the 21-day period or before she filed her application … Subjectively speaking, it is reasonable that Ms Schneider, having seen the email on 7 October 2014, only formed the view at that time that Apollo had filled her position rather than abolishing it and that her dismissal was therefore not a genuine redundancy and was unfair. Objectivelyhowever, this principal aspect of Ms Schneider’s case is without merit. It is clear that Apollo outsourced to an independent MA0-101 business in the Philippines the main functions of Ms Schneider’s former...
by David Kidd | 19 Jul 2015 | Uncategorized
Extract from Kidd's Damages P.I. Calculating the present value of the cost of fund management In L F Bell as litigation guardian for DC Bell v Pfeffer & Anor 3/8/09 [2009] QSC 209 Dutney J considered “whether in calculating future management and investment fees, the correct starting point is the amount actually received by the Administrator which was $3,509,743.13 on the basis of a straight line amortisation at 5% over a life expectancy of 62 years”@5. Dutney J considered such approach was appropriate. The amount received by the Administrator had diminished since the Court award. [Rottenbury] “50 The only question in issue between the parties was whether: In calculating the present value of the cost of fund management, does one take into account as a separate item the fact that the fund will earn income, which in some years will increase its capital value and in others will slow what would otherwise be the diminution of its capital value. … 52 The [D] submitted: (a) the predicted earnings of the [P’s] fund is but one of a number of future variables that may affect the corpus; other variables equally incapable of any form of precise calculation include the effects of inflation on amounts to be drawn down from the fund, the tax regime to which the fund is subject, and the types of investments the fund managers make in the future. These variables may affect the corpus of the fund in different ways at different times. Some may have a negative effect on the corpus; (b) it is unacceptable to adopt a model which includes only one of...
by David Kidd | 12 Jul 2015 | Uncategorized
See Davis v Swift 4/6/13 [2013] NSWDC 99 per Gibson DCJ. P was injured when struck by a car at night when crossing the road. Traffic was busy and there was a pedestrian crossing 60m from the point of the accident. His Honour found it difficult to understand the mechanics of the accident from P’s evidence, instead preferring D and other testimony that P moved to the centre of the road then walked quickly backwards into traffic (presumably due to concerns for her safety due to the level of traffic). D had been waiting to pull out from a car bay at the side of the road and another vehicle had stopped, indicating, to go into the bay. Though the duty owed to a driver by a pedestrian is a high one this was a rare case where P was entirely the author of her own misfortune. The fact that D did not see P was due to her quick and unpredictable movements. Appeal allowed in part 22/12/14 in [2014] NSWSC 458. The “primary judge did not err in not inferring fault on the part of the respondent. The evidence … did not justify a finding that from the respondent’s position in the driver’s seat had she looked forwards, backwards and forwards as she asserted, she must have seen the appellant in time to take some action to avoid colliding with her” @19 per Meagher JA. “As was the position in Axiak, the position in this case is that the ‘blameless accident’ is not one in which the driver has failed to continue in careful control of his or...
by David Kidd | 12 Jul 2015 | Uncategorized
See Buggy v Nominal Defendant 28/11/14 [2014] NSWDC 224 where Gibson DCJ, from paragraph 147, gives reasons for being cautious about evidence in police and hospital reports. There were various evidential inconsistencies in this case.
