by David Kidd | Jun 4, 2015 | Uncategorized
Breast Kite v Malycha 10/6/98 [1998] SASC 6702 Perry J [(1998) 71 SASR 321] P(f) business partner victim in 1994 when 32 (35 at trial) of medical negligence in that doctor took a needle biopsy of a lump in her breast, but failed to take appropriate steps in response to report showing high suspicion of carcinoma. If cancer had been diagnosed in Dec 94 appropriate treatment could have cured it or at least greatly extended the life expectancy she now has. In Sept 95 P had breast surgery, but by this time she was suffering a ductile carcinoma which was metastatic. Damages assessed on basis of a likelihood of successful treatment as opposed to a mere chance. 41 years reduction of life expectancy. Hair loss due to chemotherapy, “pain and discomfort associated with progressive reduction in her physical movements and capabilities and an increasing dependence upon others” @ 339. Would have probably experienced some of this if diagnosis had been made earlier in any event. Business activities severely curtailed and loss of ability to perform domestic chores and care for the family (see ‘Home maker’ commentary) PNEL $40,000; FNEL $5,000; Loss of life expectation $5,000; PEL $43,000; FEL $363,000; Vol Assist $25,000 (Past), $5,000 (future); specials $23,000; Int on past loss $8,600 Total $517,600 See ACT case of Brown v Willington 24/10/01 [2001] ACTSC 100 Crispin J where late diagnosis of breast cancer which was probably already incurable. Lumps not detected until 7 months after initial consultation. Even if cancer had been detected then treatment may only have had a limited effect – chance life may have been...
by David Kidd | May 14, 2015 | Uncategorized
Case summaries of some assessments for managing damages award. Contact David Kidd at kiddlrs@optusnet.com.au for more and to trial his outstanding national damages publication. In Ehlefeldt v Rowan-kelly 1/5/09 [2009] NSWSC 331 Hoeben J awarded $1,017,000 under this head in the case of a 33y.o. woman suffering hypoxic brain injury and who was also assessed at 100% of the most extreme case. Such award was assessed in relation to an investment fund of $5m over 50 years. The proper approach to the assessment of fund management fees discussed by Martin J in Waller v McGrath & Anor 19/6/09 [2009] QSC 158 in the case of a 12 y.o. (20 at judgment) suffering serious brain injury. “The defendants should not be obliged to pay, in addition to management workhospitality.com.au of over 60 years was significantly disabled and received a verdict of ten million dollars. Held “that the plaintiff’s claim for the future cost of managing the fund management component of her damages award be allowed … [and] that the plaintiff’s claim for the future cost of managing income earned upon the investment of the fund at an assumed rate of 5 per cent be allowed” @73. Various cases considered. Appeal allowed in part from this decision and related decisions on 2/12/13 in Richards v Gray [2013] NSWCA 402 [66 MVR 16]. McCallum J was correct in finding that it was not appropriate to make any deduction from the fund for the purpose of the calculation of fund management costs as it was speculative as to when certain payments would need to be made. McCallum J erred by allowing compensation...
by David Kidd | May 14, 2015 | Uncategorized
Some case summaries and references from Kidd & Darge’s Traffic Law (Civil & Criminal) are below. Email David Kidd at kiddlrs@optusnet.com.au to trial this invaluable national Australian motor and traffic law publication. The cross-references provided below are not linked to this document, but are in the main volume. Australian Road Rules 1999 (ARRs) Applicability of “[95] The Australian Road Rules are part of the law of New South Wales by virtue of the following statutory provisions. First, the Road Transport (Safety and Traffic Management) Act 1999 (NSW) makes extensive provisions on matters of safety and traffic management. The objects of that Act include ‘to provide for a system of safety and traffic management that is consistent with the uniform national approach envisaged by the agreements changerssoftware.com of transport on roads and road related areas’ (s 3(c)). Section 71 and Schedule 1 create a broad authority churchsoftwareguide.net make them part of New South Wales law.” Davies v Ku-ring-gai Municipal Council 10/9/03 [2003] NSWSC 840 Austin J Definitions in See definition’s section of the ARRs for many definitions of terms used in the rules. List of rules indexed R 12 see ‘Road’ R 13 see ‘Road-related area’ R 14 see ‘Road user’ R 15 see ‘Vehicle’ R 16 see ‘Driver’ R 17 see ‘Rider’ R 18 see Pedestrians – Definition of & Wheelchairs R 20 see School zone – Speed limits R 21(2) see Heavy vehicles – Speed limits R 21(3) see Speed limit sign – Application of R 23 see School zone – Speed limits R 24 see Shared zone R 25 see Speed limit sign...
by David Kidd | May 14, 2015 | Uncategorized
Dismissal – Bullying & Harassment Freckleton I (Dr) (SC), ‘Employers’ Liabilities for Bullying-Induced Psychiatric Injuries’ (2008) 16(1) Journal of Law & Medicine 9; Rooding A, ‘Workplace Bullying – No Place to Hide’ (2008) 82(11) LIJ 54 Baker & Fletcher, ‘Victoria’s New Bullying Laws – What do they Mean for Employers?’ (2011) 14(7) IHC 77 [2010] FWA 4359 email kiddlrs@optusnet.com.au to receive case summaries of the cases below [2011] FWA 2113 [2011] FWA 2689 [2011] FWA 7244 [2012] FWA 1232 [2012] FWA 6147 [2012] FWA 6615 [2013] FWC 6559 [2013] FWC 9587 [2013] FWC 9484 [2014] FWC 5072 [2014] FWCFB 1440 [2015] FWCFB...
by David Kidd | May 11, 2015 | Uncategorized
s52A(1)(c) – Dangerous driving occasioning death (contact kiddlrs@optusnet.com.au for more cases, or for cases for your state) See also Manslaughter (motor) See Mitreski v R; R v Mitreski 11/12/08 [2008] NSWCCA 301 [(2008) 51 MVR 536] per Latham J, Full Court, from para. 53 where authorities on the meaning of ‘momentary inattention’ were canvassed and a sentencing appeal allowed. On two accounts of dangerous driving causing death the D was sentenced to a non parole period of two years on the first count and to a non parole period of two years on the second count and a disqualification period of three years. In Shumack v R 16/12/08 [2008] NSWCCA 311 the COA upheld the sentences for dangerous driving causing death contrary to s52A(1)(c) and failing to stop after such driving contrary to s52AB(1). There was no error in considering the failure to stop to be an aggravating factor in the former offence. The issue of double punishment was thoroughly considered. A further aggravating factor was an alcohol reading of 0.1%. The A had a good record, was unlikely to reoffend, had good rehabilitation prospects, but did not plead guilty. His sentence was as follows: “imprisonment with a non-parole period of 4 years to date from 15 October 2007 and to expire on 14 October 2011 with an additional term of 2 years to expire on 14 October 2013 [for the s52A(1)(c) offence] … [and] imprisonment with a non-parole period of 3 years to date from 15 October 2009 and to expire on 14 October 2012 with an additional term of 2 years to expire...
by David Kidd | May 11, 2015 | Uncategorized
Mobile phones (Extract from Kidd’s Traffic Law – contact David at kiddlrs@optusnet.com.au for free trial. See www.kiddslaw.com for more) See ARR 300 Articles Swil J, ‘Does Switching Off a Mobile Phone Constitute “Using” the Phone?’ (2005) ALJ 559 ARRs (‘use’ of) In Burns v Police 25/5/07 [2007] SASC 191 Justice Grey had to determine whether the A was rightly convicted of breaching Rule 300 of the ARRs by depressing a green button on the front panel of his mobile phone to answer a call while stationary at traffic lights. A was using ‘Blue tooth hands free’ technology, whereby he could have a conversation with the caller through the speakers of his car only after he had pushed the green button. To find the button, however, A had taken his eyes off the road to look at the front panel of his phone. The evidence also was that he looked at the phone to see who was calling. Submission that Rule 300 could only be breached by a driver holding a mobile phone in the hand rejected as stated that the “term ‘hand-held’ operates as an adjective to qualify the noun phrase ‘mobile phone’, rather than an adverb qualifying the verb ‘use’” [17]. No reason found “to limit ‘use’ so that it does not include depressing a button on the phone to answer an incoming call” [27]. Chresta and Kyriakopoulos followed (see commentary on these cases below). *** Note that as a result of this decision the SA Parliament swiftly passed new regulations overiding its effect so that drivers who had installed hands free technology would not...
