by David Kidd | Jun 19, 2015 | Uncategorized
Death [See also Wrongful Death] Articles Kutner P, ‘Reforming Wrongful Death Law’ (1999) 7 Torts Law Journal 46 Children (of) Hole v SGIC 4/5/90 [1990] SADC 1591 Burnett J – P(f) homemaker injured MVA July 1985 when 25 (29 at trial). Fractured pelvis, involving a separation of the front of the pelvis and of the sacro-iliac joints, fractured right clavicle and suffered lacerations to the knee and ankle. 20% loss of total body function. Six months pregnant at the time and the child in her womb was fatally killed as was her mother. Emotional difficulties (reactive depression/grieving) ‘serious, debilitating and distressing’. With pain she managed to go on to work at kindergarten and meatworks. PNEL $15,000; FNEL $35,000; PEL $1,500; FEL $45,000; specials $1,491.30; airfare for husb to visit $1,000; BvF $3,500; Total $102,491.30 Not on austlii In Karamesinis v Australian Crowd Control Services 1/5/12 [2012] VCC 507 Saccardo J awarded each of motorup.com.au of an altercation with a crowd controller at a nightclub. The Ps had already lost their only other child (another son) in tragic circumstances two years earlier in 2005. Both P’s were suffering significant mental issues before the death of their oldest son as a result of the death of their youngest son. However, the subsequent death crushed them, and they are unlikely to recover from their severe psychiatric symptoms including PTSD, anxiety and depression. Contingency of premature death [See Contingencies – Premature death/life expectancy] Employee See Barclay v Penberthy; Penberthy v Barclay 2/10/12 [2012] HCA 40 where in the case of a plane crash caused by engine failure and...
by David Kidd | Jun 19, 2015 | Uncategorized
Summaries of motor manslaughter cases from Kidd’s Traffic Law (criminal) see www.kiddslaw.com for more. Email kiddlrs@optusnet.com.au See R v Borkowski 15/4/09 [2009] NSWCCA 102 [52 MVR 528] where CCA reviewed a sentence for motor manslaughter in the case of a 37y.o. involved in street racing resulting in the deaths of two people. “The sentence imposed upon the [R] was made up of a fixed term of imprisonment of 4 years from 31 July 2007 on the first count, relating to the death of Mrs Howle, and a term of imprisonment made up of a non-parole period of 4 years and a balance of term of 3 years from 31 July 2009 on the second count, relating to the death of Mr Howle. As a consequence the [R] is eligible to be released to parole on 30 July 2013. The [R] was disqualified from driving for a period of 6 years from 5 November 2008”@14. Such sentence was considered too light, but was not overturned for various reasons. In SBF v R 10/9/09 [2009] NSWCCA 231 [(2009) 53 MVR 438] the CCA compared the offences of aggravated dangerous driving causing death and motor vehicle manslaughter, finding the latter to be the more serious offence. See discussion from paragraph 104. In Gallagher v State of Tasmania 18/9/09 [2009] TASSC 84 [54 MVR 6] the CCA, by majority, dismissed A’s appeal against a sentence of four years imprisonment with a two year and eight month non-parole period for causing death by dangerous driving. A, who was 21, and his friend, Anderson, dangerously raced their cars at high speed over...
by David Kidd | Jun 19, 2015 | Uncategorized
[2014] FWC 988 Qld Stewart v Amcor Excavations (the A, a labour hire employee, was placed with a client who no longer wanted him – A was surplus to R’s needs. “The Applicant’s skill profile was not in demand at any other site, it was powerless to return the Applicant to the original client and its work site, and the Employer at the same time was reducing its employment levels significantly in other areas in which it had direct employees” @46 – R “no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Employer’s enterprise, as it is broadly conceived” @47 – R claimed that the decision to make A redundant could not be regarded as a ‘major change’ under the relevant Modern Award’s consultation provision arguing “that the redundancy of a single employee alone does not constitute a major change” @19 – the plural ‘employees’ was used in the award, but such held not to negate the application of the award to one employee – R also argued that a “major change is ‘where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology” @26 – according to R, “there was no decision taken by the Employer to introduce a major change that had any significant effects. The Employer encountered a set of circumstances imposed upon it by an external event, and responded at a discrete level, but this could not amount to a major change of the type the consultation clause envisages” @31 – held that “consultation provisions in...
by David Kidd | Jun 12, 2015 | Uncategorized
See Campton v Centennial Newstan Pty Ltd (No 2) 17/12/14 [2014] NSWSC 1799 where Hall J did not consider that P’s prior access to superannuation should reduce the P’s award for loss of superannuation entitlement.
by David Kidd | Jun 12, 2015 | Uncategorized
See Fernando v Commonwealth of Australia 22/12/14 [2014] FCAFC 181 where Besanko & Robertson JJ’s considered there was a rational relationship between personal injury damages awards and defamation awards. See Cerutti & Anor v Crestside Pty Ltd & Anor 28/2/14 [2014] QCA 33 where Applegarth J carefully explained the proper use of comparable awards at paragraphs...
by David Kidd | Jun 12, 2015 | Uncategorized
[2014] FWC 9453 Qld Clarito v Hitec Welding (the A was dismissed for refusing to attend a meeting without having a union representative present – if he had attended, he would have received a warning for attempting to get other employees to join the AMWU – dismissal harsh etc – compensation...
