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S 318 Workplace Injury Management Act – “materially different”: particulars of negligence and foreseeability

By robertsheldon / October 25, 2019 / Comments Off on S 318 Workplace Injury Management Act – “materially different”: particulars of negligence and foreseeability

Sohailee v City Projects & Developments Pty Ltd [2019] NSWSC 1452 22 The purpose of s 318 of the Workplace Injury Act must be to ensure that claimants and employers properly participate in the pre-filing process required by the Act; that is, the claimant is required to put the defendant on notice of the particulars…

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Police powers and duties: incoherence and incompatibility; Summary dismissal

By robert / October 3, 2018 /

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 – where argument available that common law should be extended to recognise duty of care –…

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Solicitor's duties: retainer etc

By robert / October 2, 2018 /

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 the plaintiff about personal mortgages in various loan agreements — the plaintiff has not established…

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Corporate structure and duty of care

By robert / March 27, 2018 /

Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54 The Court (Basten JA, Sackville AJA and Simpson JA) allowed the appeal on damages in part but otherwise dismissed the appeal; by majority the Court (Basten JA and Sackville AJA, Simpson JA dissenting) dismissed the cross-appeal. The Court held: In relation to (i): (1)   Neither the separate…

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Peer professional opinion in practice

By robert / March 11, 2018 /

NEGLIGENCE — Medical negligence — Peer professional opinion — Civil Liability Act 2002 (NSW) s 5O — Whether necessary that at the time of the alleged negligence there was an established practice which was widely accepted as competent medical practice — McKenna v Hunter & New England Local Health District [2013] NSWCA 476; (2013) Aust…

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Pre-existing medical conditions, aggravation and the burden of proof

By robert / February 18, 2018 /

TORTS – negligence – apportionment of responsibility and damages – medical negligence – whether pre-existing condition was progressively deteriorating – whether causation was established – whether assessment of damages could be challenged – challenges to findings of fact and damages dismissed

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Recovery of compensation payments

By robert / December 11, 2017 /

The question to be determined by the Court was whether Parkes Shire Council was able to recover payments of workers’ compensation from South West under s 151Z of the Workers Compensation Act 1987 (NSW).  

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Professional liability, limitation periods and summary dismissal

By robert / December 5, 2017 /

(1)   The respondent’s causes of action accrued once the impact of the settlement of the first WC claim became “known or apparent”. According to his pleaded and particularised case, that occurred on or around the date of his knee surgery in November 2007, at which time he suffered measurable damage for the purposes of both his…

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The ability to delegate the duty of care owed by an occupier

By robert / October 30, 2017 /

[et_pb_section admin_label=”section”] [et_pb_row admin_label=”row”] [et_pb_column type=”4_4″] [et_pb_text admin_label=”Text”]     STRINGER & OR v WESTFIELD SHOPPING CENTRE MANAGEMENT CO (SA) PTY LTD [2017] SASCFC 138 Discharged a delegable duty (Ground 2) 2            The duty of an occupier in the circumstances of the respondent may be discharged by the exercise of reasonable care and skill in engaging…

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Commonwealth Duty of Care to passengers on Suspected Illegal Entry Vessel

By robert / September 18, 2017 /

    In December 2010 the Commonwealth of Australia, through Border Protection Command, was conducting an operation in Australian territorial waters in the vicinity of Christmas Island known as “Operation Resolute” which was directed towards responding to identified maritime threats, including irregular maritime arrivals.  

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