by David Kidd | Jul 21, 2014 | Uncategorized
Today, 21/11/14, the new web-site of Kidd's Law Publications was launched in Word Press. Valuable new Product Previews have been freely provided on the web-site for Fair Work Law & Annotated Act, Kidd & Darge's Traffic Law (Civil & Criminal), Kidd's Damages Australia – Assessing Personal Injury Damages in Australia, and Kidd's Traffic Law (Criminal). Stay tuned to this blog as summaries of the latest case law pertaining to Fair Work Australia Law, motor and traffic Law and assessment of damages law will be provided...
by David Kidd | Jul 16, 2014 | Uncategorized
FWA Cth s382(b)(iii) – High income threshold [2014] FWC 8956 NSW Post v QSuper Ltd (“The applicant’s total remuneration package was $145,600. The total contribution to his superannuation account was 12.5%. The respondent submitted that only the compulsory 9.5% charge was excluded from Mr Post’s total remuneration package for the purposes of assessing whether he exceeded the high income threshold” @8 – “a higher voluntary contribution is a contribution from income which is properly considered income to be taken into account in assessing whether or not the high income threshold is exceeded”...
by David Kidd | Jul 9, 2014 | Uncategorized
In Proudlove v Burridge 19/11/14 [2014] WADC 156 per Keen DCJ, P was left severely disabled after the vehicle in which he was a passenger hit a horse and left the road. The accident occurred at night on a country road where the speed limit was 110kmh. A motorist, having seen two horses on the road, stopped her car with the headlights facing oncoming traffic, put her hazard lights on and attempted to shoo the horses away. When this proved unsuccessful she tried to wave a warning to oncoming vehicles. One driver saw her and swerved but lost control of her vehicle. P alleged that D, the driver of the vehicle she was in, was negligent for failing to see the horses, the lady on the road or the lights of her vehicle. P’s claim was dismissed. D was driving within the speed limit and otherwise carefully. Whilst it was found that he was negligent for failing to see the hazards, P ultimately failed on causation. Even if D observed the hazards, braked and swerved it had not been shown that the accident could have been avoided or lessened to any appreciable extent (p569). The collision appeared to be inevitable or unavoidable. Section 5D Civil Liability Act...
by David Kidd | Jul 9, 2014 | Uncategorized
See Oram v BHP Mitsui Coal Pty Ltd & Anor 19/9/14 [2014] QSC 230 where McMeekin J, in a limitations case, stated A had “at least reasonable prospects of persuading the eventual tribunal of fact that psychiatric injury to a surviving employee, particularly one who was designated to work with those who died, was a foreseeable outcome in the relevant sense from exposure to such a disaster as occurred and the loss of 11 workmates” @66. A did not witness the disaster, but was involved the next day in the search for the...
by David Kidd | Jul 9, 2014 | Uncategorized
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 or severity of the structurally compromised and...
by David Kidd | Jul 1, 2014 | Uncategorized
ACT … Dental See Robinson v Ng 7/11/14 [2014] ACTSC 227 where in 2009 when P was about 50, “[d]uring the course of an attempted extraction of one of her molars, part of the root of the tooth was pushed upwards through the wall of the plaintiff’s sinus and was lodged in the sinus. The plaintiff required remedial surgery and claims damages” @1. Mossop M concluded: (a) The location of the tooth, the breaking of the crown and the absence of movement in the remaining root indicated that by the time of the Second X-ray the risks of the defendant continuing with the extraction outweighed the benefits. (b) The defendant continued the extraction in circumstances where a reasonably competent general dentist would have recognised that the risks associated with continuing were significantly greater than if the plaintiff was referred to an oral surgeon. (c) Notwithstanding the expressed wishes of the patient, it is the dentist that remains in control of the procedure and whether or not it is pursued. That is of particular significance where a patient who has suffered significant pain prior to attendance and a long and difficult extraction. The desire of the patient to have the process successfully completed does not compel or justify a dentist in continuing to persevere when the risks outweigh the benefits. … [A]t the time of the Second X-ray the defendant breached his duty by not ceasing to treat the plaintiff and referring her to an oral surgeon or a general dentist with experience in oral surgery” @134-135. D’s “breach of duty caused the wall of the maxillary sinus to be...
