by David Kidd | Jul 19, 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 | Jul 12, 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 | Jul 12, 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.
by David Kidd | Jul 4, 2015 | Uncategorized
In WW v R 9/8/12 [2012] NSWCCA 165 A was sentenced to two years and nine months imprisonment for failing to stop after an accident in October 2009 when he was 17 in which he killed a cyclist. On the count of dangerous driving causing death “the [A] was sentenced to imprisonment with a non-parole period of 4 years, commencing 1 January 2012 and expiring 31 December 2015, with a balance of term of 3 years expiring 31 December 2018. The overall sentence was a non-parole period of 5 years, with a balance of term of 3 years. His Honour also imposed a licence disqualification of 6 years commencing 19 April 2011. A only pleaded guilty to failing to stop. “In assessing moral culpability, his Honour appropriately took into account that the [A] was never licensed to drive, had been convicted on two occasions of driving while unlicensed and yet shortly before the accident had purchased the car which was involved. The [A’s] failure to stop was relevant, although its importance was limited given that it formed the basis of the second offence. His Honour considered that the deliberate use of a telephone to text a message so that the driver was totally oblivious to the fact that the car had moved onto the incorrect side of the road and had thereby lost control of the car, was an important factor in his assessment of the moral culpability of the [A] as high. That was a conclusion well open … [A]n activity which so occupies the attention of a driver that he does not or cannot observe the road...
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...
