Transcript Case Law and Legislation Update Murphy Steve Herd

MurphySchmidt
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Case Law and
Legislation Update
Steve Herd
Senior Associate
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Civil Liability and Other Legislation Amendment Act 2009 –
The Act was assented to on 17 March 2010 and will amend the
following legislation:
1.
2.
3.
4.
5.
6.
7.
8.
Civil Liability Act 2003;
Civil Liability Regulation 2003;
Law Reform Act 1995;
Limitation of Actions Act 1974;
Motor Accident Insurance Act 1994;
Motor Accident Insurance Regulation 2004;
Personal Injuries Proceedings Act 2002; and
Personal Injuries Proceedings Regulation 2002.
The majority of the amending provisions will apply to injuries arising on and from 1 July 2010
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Limitations of Actions Act 1974
Amend section 11 to abolish the statutory limitation period
for personal injury resulting from a dust - related condition
but will still apply to personal injury resulting from smoking
or other use of tobacco products or exposure to tobacco
smoke.
Transitional provision will ensure the amendment will be
retrospective in effect provided that:
1.
2.
3.
Judgment has not been given in the action;
The action has not been settled or discontinued; and
There has not been a previous unsuccessful application to
extend the statutory limitation period.
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Law Reform Act 1995
• Amend section 13 to allow damages for
loss or impairment of consortium to be
recovered by a spouse of an injured
person.
• Acts Interpretation Act 1954 – spouse
includes a de-facto partner and same sex
couples.
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Civil Liability Act 2003
•
Partial reinstatement of Sullivan v Gordon Damages – allowance of
damages for a claimant’s inability to provide care to others. Pre-requisites:
o The injured person died because of the injuries suffered or general damages for
the injured person are assessed at the amount prescribed for section 58
(currently $30,000.00 or $35,340.00 from 1 July 2010);
o The recipient was a member of the injured person’s household when the relevant
injury happened;
o Before the relevant injury happened the injured person provided the services to
the recipient;
o The recipient was, or will be, incapable of performing the services personally
because of their age or physical or mental incapacity;
o But for the injury, there is a reasonable expectation that the injured person would
have provided the services for at least six hours per week for at least a period of
six months; and
o The need for the services is reasonable in all the circumstances.
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• Sections 59A, 59B, 59C and 59D will provide
some exemptions to pre-requisites, deal with
issues of double recovery and list relevant
factors that a court must take into account.
• Amends subsection 5(3) to ensure that damages
for gratuitous services provided under section
59A are available to dust and tobacco related
injuries.
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Interest
• Amends section 60 to prevent the recovery of interest on an award for gratuitous services.
General Damages
• Amends section 62 – calculation of general damages to be prescribed by regulation.
• The amounts used in the calculation of general damages will increase by approximately
17.8% - This means the scheme maximum for general damages will increase from
$250,000 to $294,500 (a table comparing the current scale and soon to be introduced
scale is attached).
• A new section 75 to allow annual indexation of general damages. Under section 75,
monetary amounts will be adjusted on 1 July each year by the percentage change in
average weekly earnings over the preceding four quarters.
Structured Settlements
• Amends section 64 to facilitate the annual indexation of the threshold above which the
court is required to inform parties of a proposed award. The threshold is prescribed under
the Regulation.
• The threshold above which the court is required to inform parties of a proposed award
(currently $100,000.00) in respect to structured settlements will be increased to
$117,800.00.
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Costs in Motor Vehicle and Public Liability Claims
The Act amends the Motor Accident Insurance Act 1994,
Motor Accident Insurance Regulation 2004, Personal
Injuries Proceedings Act 2002 and Personal Injuries
Proceedings Regulation 2002 such that:
$2,500 =
$30,000 =
$50,000 =
“Declared Costs Limit”
“Lower Offer Limit”
“Upper Offer Limit”
=
=
=
$2,950
$35,340
$58,900
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Certificate of Readiness
• Amends section 37(2)(a) of PIPA by removing the
reference to trial in respect to the certificate of readiness.
Urgent Proceedings
• Inserts a new section 44. Unlike the existing section 43
which requires the leave of the court, section 44 will
provide a mechanism for urgent proceedings to be
started by agreement. Provided all parties agree, a
claimant can start proceedings but they will be stayed
pending compliance with the pre-court procedures or the
proceeding is discontinued or otherwise ends.
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Waller v McGrath & Anor [2010] QCA 17
• Mr Waller sustained a severe traumatic brain injury in a motor
vehicle accident.
• The court found he was commercially unemployable and in need
of constant care and attention.
First Instance:
• Trial judge awarded damages for the past and future gratuitous
care that had been and was to be provided to Mr Waller by his
mother at rates of $16, $18 and $20 per hour. Those hourly
rates not reflecting any allowance for an agency fee that would
be charged if Mr Waller was seeking the assistance from a
commercial provider.
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[35] The market cost of providing services is a
question of fact. The evidence at trial supported
the trial judge’s assessment. It established that
carers could be engaged and paid at the award
rate and that it was not necessary to purchase
their services through an employment agency.
Given that the services had been in the past, and
will continue to be provided by Mrs Waller on a
continuous basis the award rate represented the
reasonable and appropriate market cost.
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Waller v McGrath per Lyons J
Castro v Hillery [2001] QSC 510 where his Honour Justice Jones held that:
Market rates are dictated by the necessity to
have available a supply of reliable competent
carers on demand. Such a situation in market
terms would usually be achieved only by the
engagement of a reputable agency and with
that, the inevitable administration costs.
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Van Gervan v Fenton [1992] HCA 54
Once it is recognised that it is the need for the services
which gives the plaintiff the right to an award of damages, it
follows that the damages which he or she receives are not
determined by reference to the actual cost to the plaintiff of
having them provided or by reference to the income
forgone by the provider of the services… Because the
market cost of services is ordinarily the reasonable and
objective value of the need for those services, the market
cost, as a general rule, is the amount which the defendant
must pay as damages.
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Goode v Thompson and Suncorp Metway Insurance Ltd [2002] QCA 138
[i]f the administrative charge is part of the market cost of the services required by an
injured plaintiff, it must, subject to the qualifications expressed in Van Gervan v Fenton
be included as part of the damages in respect to those services.
What is the market cost of the services which are required by a plaintiff in any particular
case is a question of fact which will be affected by the nature of the services required by
that plaintiff and the capacity of the plaintiff to engage and organise those services.
The respondent in this matter is incapable of engaging or organising the kind of care
which he required. The commercial cost of the care which he needs for the first period
must therefore be calculated on the basis of the care being provided by and through a
commercial organisation. Consistently with Van Gervan v Fenton, the market cost of that
care must include the agency fee, even though for the first period it was anticipated
by the trial judge that the care would be provided by the respondent’s parents.
[emphasis added]
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Van Gervan v Fenton
•
•
•
•
•
•
•
No binding agreement to continue providing the services…
relationship between the parties may end for a myriad of reasons.
predictability of a relationship continuing in the class is made more
difficult than usual by the plaintiff’s condition and needs…
affect on emotional needs of those caring for [the plaintiff].
care provider will not reveal to the court his or her true feeling about
continuing to provide services…
market cost criterion enables the plaintiff to be properly
compensated whether or not gratuitous care provider continues to
provide that care.
[If the gratuitous care provider should fail to continue providing
care,] the basis of assessment would be inoperative.
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Leighton Contractors Pty Ltd v Fox;
Calliden Insurance Ltd v Fox [2009] HCA 35
•
Fox was injured when struck by a concrete pipe that had not
been secured by Stewart in accordance with the relevant
industry code on a construction site in Sydney
•
Chain of contractors:
o Leighton Contractors Pty Ltd – Principal Contractor
o Downview – concreter sub-contracted to Leightons;
o Mr Still and Mr Cook – sub-contracted to Downview for the
concrete pumping and supplied the pipes and equipment;
o Mr Stewart and Mr Fox – sub-contracted to Still and Cook to
undertake the work.
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[20] The common law does not impose a
duty of care on principals for the benefit of
independent contractors engaged by them
of the kind which they owe their employees.
However, it is recognised that in some
circumstances a principal will come under a
duty to use reasonable care to ensure that a
system of work for one or more independent
contractors is safe.
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[59] …Had Downview failed to engage a
competent contractor, it may not have avoided
liability for the negligent failure of the contractor to
take reasonable care to adopt a safe system of
work. However, provided that the contractor was
competent, and provided that the activity of
concrete pumping was placed in the contractor’s
hands, Downview was not subject to an ongoing
general law obligation with respect to the safety of
the work methods employed by the contractor or
those with whom the contractor subcontracted.
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[37] The duties extended to ensuring that
people other than employees were not
exposed to risks to their health or safety
arising from the conduct of the employer’s
undertaking while such persons were at the
site… They are obligations of strict liability
subject only to the defences set out in s 28
of the OHS Act, proof of which lies on the
defendant. (emphasis added)
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CAL No 14 Pty Ltd v Motor Accidents Insurance Board;
CAL No 14 Pty Ltd v Scott [2009] HCA 47
• Mr Scott commenced drinking at hotel with a work colleague at
about 5:15 pm. He was not a regular patron of the public bar.
• Rumour of a police presence prompted Mr Scott to request the
publican lock his motorcycle in the storeroom, which he did, on the
understanding that Mr Scott’s wife would collect him.
• Mr Scott continued drinking with his work colleague. The colleague
left at about 8:00 pm. Approximately 15 minutes later Mr Scott was
sitting with his head on the bar when he was refused further service.
• The publican then offered to ring Mr Scott’s wife but the offer was
refused.
• Mr Scott then requested the publican return the motorcycle to him.
• Mr Scott was killed when he lost control of his motorcycle riding
home - BAC 0.253%.
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[52]…The reason is that outside exceptional
cases, which this case is not, persons in the
position of the Proprietor and the Licensee, while
bound by important statutory duties in relation to
the service of alcohol and the conduct of the
premises in which it is served, owe no general duty
of care at common law to customers which
requires them to monitor and minimise the service
of alcohol or to protect customers from the
consequences of the alcohol they choose to
consume.
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At paras [39] to [42] and [53] to [55]:
• “Legal Cohesion”
• The difficulty of defining and applying
expressions like “intoxication”, “inebriation”
and “drunkenness”.
• The importance of “individual autonomy”
and “responsibility”.
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Adeels Palace Pty Ltd v Moubarak;
Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48
• Adeels Palace was a restaurant come night club and on
the night in question there were some 300 people
present for a New Year’s Eve party.
• An argument developed on the dance floor which quickly
escalated into physical violence. One man involved in
the altercation left the premises only to return a short time later with a gun at which time he shot each of the
Respondents.
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[26] Adeels Palace owed each plaintiff a duty to take
reasonable care to prevent injury to patrons from
violent, quarrelsome or disorderly conduct of other
persons.
[50] Recognising that changing any of the circumstances in
which the shooting occurred might have made a
difference does not prove factual causation. [emphasis
added]
See also Quintano v BW Rose [2009] NSWSC 446 and
Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2.
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Amaca Pty Ltd & Ors v Ellis [2010] HCA 5
Mr Cotton died of lung cancer against a background of:
• Smoking an average of between 15 and 20
cigarettes per day for approx 26 years; and
• Being exposed to respirable asbestos fibres during
the course of his employment with the South
Australian
Engineering
and
Water
Supply
Department between 1975 and 1978 and the
Millennium Inorganic Chemical Ltd between 1990
and 2002.
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[2] No scientific or medical evidence can say why
Mr Cotton developed lung cancer.
[6] The courts’ response to uncertainty arising from
the absence of knowledge must be different
from that of the medical practitioner or
scientist… The plaintiff recognised that the
courts were asked… to reduce to legal
certainty a question of causation to which no
other conclusive answer can be given.
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[14] But in the end, the plaintiff’s case, that it
was more probable than not that Mr
Cotton’s being exposed to respirable
asbestos fibres was a cause of his
cancer, fails because no more was
established than that, although exposure
to asbestos may have been a cause of
his cancer, it was not a probable cause.
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K v G [2010] QSC 13
• Plaintiff was sexually assaulted by the
Defendant.
• The Defendant pleaded guilty to a number
of
counts
of
indecent
treatment,
maintaining a sexual relationship with a
child and carnal knowledge of a child.
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• [56] An award of aggravated damages is,
fundamentally, compensatory in nature.
• [59] …Aggravated damages are not awarded for
punitive purpose… [G]iven the defendant had
already been punished by the criminal law… [i]t
seems to me… that the awards made in this
judgment are the proper and appropriate
compensation to which the plaintiff is entitled in
this civil proceedings.
See also Paten v Bale [1999] QSC 265.
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Syben v Mackay TFS Pty Ltd [2009] QSC 367
• Mr Syben sustained injuries in three work - related
incidents, namely falls from heights, occurring between
15 November 2002 and 8 April 2004.
• First two incidents only gave rise to a muscle strain and
soft tissue injury whereas the third incident resulted in a
disc prolapse at L5 - S1.
• Third incident was causative of need for care and
assistance – entitlement governed by the Workers’
Compensation and Rehabilitation Act (“WCRA”) 2003.
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In summary, WCRA provides that:
• Gratuitous services include those services provided by a
member of the worker’s family or household or friend –
section 308A.
• If services were either paid for or provided gratuitously
before the accident than the cost of those services will
not be recoverable – section 308B and 308D; and
• Where services have been provided gratuitously since
the accident, the cost of those services can not be
claimed – even if the worker intends to pay for those
services in the future – sections 308C and 308E.
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His Honour Justice Jones adopted the approach of Carrothers JA in
Gray v Insurance Corporation of British Columbia (1987) 46 DLR 269 in
which it was said:
The word ‘household’…implies a ‘householder’ which in turn implies some
form of relationship between the ‘member’ and the ‘householder’. This
relationship imposes on the ‘member’ a certain deference to the
‘householder’, compliance with a degree of propriety and responsibility
and an active sense of participation in ‘household’ functions and to defer
to the wishes of the ‘householder’ in this regard.
[53]… I am not satisfied on the material before me that any of the adult
males who remain unidentified and whose relationship is undefined
was a member of the plaintiff’s household as contemplated by the
definition of gratuitous services.