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Appellate review of an award of non-economic loss
White v Redding [2019] NSWCA 152 Non-economic loss Relevant statutes and legal principles At common law, general damages for pain and suffering resulting from personal injury were “almost entirely [a] matter of impression and of common sense, and [were] only…
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Leave to appeal
[28] In PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48, this Court made reference to the proper approach of an intermediate appellate court to applications for leave to appeal from interlocutory decisions involving the exercise of discretion on questions of practice and…
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Issue estoppel, res judicata and abuse of process with a twist of s. 151Z of the Workers Compensation Act, 1987
in Recent casesIAG Limited trading as NRMA Insurance v Lucic [2019] NSWSC 620
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Summary dismissal and multiple defendants
[6] The primary judge would have been justified in simply refusing to deal with the late application. Although it does not appear that the primary judge was referred to the relevant authorities, it is clearly established by decisions of this…
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Fuller v Avichem Pty Ltd: principles for residual earning capacity
Fuller v Avichem Pty Ltd (t/as Adkins Building & Hardware) [2019] NSWCA 305 [45] The following principles are applicable to the determination of whether a plaintiff such as Mr Fuller has residual earning capacity: Because an individual has a physical…
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Appeal – error?
in Recent casesElskaf v GIO General Limited [2019] NSWCA 23 Appeal from a decision of the District Court. The primary Judge (Wass SC DCJ) dismissed the appellant’s claim against the respondent (GIO) under a Motor Vehicle Insurance Policy (Policy) for the agreed…
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TPD: delay and duty of good faith
in InsuranceSargeant v FSS Trustee Corporation [2018] NSWSC 1997 Delay in deciding claims 100 As already noted, the question is whether MetLife’s failure to make a decision on Ms Sargeant’s claim by 3 September 2015 or, alternatively, by 3 September 2016,…
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Obvious and insignificant risk resulting from unevenness in surface
In 2015 the appellant, then aged 70, tripped outside the entrance to an aged care facility operated by the respondent. The surface of that area consisted of large, flat concrete slabs bordered by rows of red bricks. There were height…
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Costs of defending criminal proceedings flowing from wrongful arrest not recoverable
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Real estate agents: mere conduits?
Reasonable purchasers in the position of the Hyders would have taken from their inspection of the property, the relevant marketing material and their oral communications with McGrath that the information that it provided in respect of parking was obtained from…
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Preliminary discovery
APPEALS – civil procedure – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – where application dismissed for failure to satisfy the Court of entitlement to make a claim for relief – whether dismissal involved a determination…
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Police powers and duties: incoherence and incompatibility; Summary dismissal
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – primary judge summarily dismissed proceedings on basis that defendant did not owe plaintiffs a duty of care – where weight of current authority against existence of duty of care –…
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Solicitor's duties: retainer etc
TORTS — Negligence — Professional Negligence — Solicitor and Client — No formal retainer TORTS — Negligence — Professional Negligence — Solicitor and Client — No formal retainer — the plaintiff solicitor alleged that the defendant solicitor failed to advise…
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Commercial claims in the District Court: jurisdiction?
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Compulsory acquisition; statutory construction; vested rights
Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196
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"Means and includes"
Council of the Law Society of New South Wales v Bouzanis [2017] NSWCA 330 I turn now to the definition of “trust money” in s 243. The definition is of the not unfamiliar kind that begins with a broad…
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Insurance: complying with Australian Standards, recklessness and all reasonable precautions
in InsuranceThe terms of the policy relevant to the issue raised by ground 1 of the appeal are essentially the condition entitled ‘what you must do when you have a policy’, read in light of the ambit of the…
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Vicissitudes and life expectancy
Section 13 of the Civil Liability Act 2002 (NSW) applies to damages for future economic loss both in respect of “future earning capacity” and “other events on which the award is to be based”. The latter category includes damages for…
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Negligence – need to deal with each suggested precaution by reference to s. 5B(1)
NEGLIGENCE – occupier’s liability – customer trips and falls in appellant’s premises while entering a children’s play area – play area had raised shock-absorbent surface – primary judge found failure to warn and failure to make surface of play area…