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Negligence

Building site Head contractor: liability to and for the employees of others

By robertsheldon / March 18, 2020 / Comments Off on Building site Head contractor: liability to and for the employees of others

Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41 On 24 May 2013, before dawn, Brett Harford was delivering supplies to a building site in Homebush West. On arrival, the builder’s supervisor, Mr Isaia, directed him…

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Appeals on apportionment

By oooo / March 10, 2020 / Comments Off on Appeals on apportionment

[77] … As Meagher JA explained in Smith v Zhang [2012] NSWCA 142;  (2012) 60 MVR 525: “[21] Because the task of apportioning responsibility involves the weighing of a number of considerations and the making of judgments about which minds might reasonably differ, it is well established that appellate courts should not interfere in the absence of some…

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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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