Australia: At The Courthouse

Last Updated: 13 May 2009
Article by James Bruun

Edwards v Territory Insurance Office [2009] NTSC 6

This case dealt with an applicant's entitlement to benefits for the loss of earning capacity under section 13 of the Motor Accidents (Compensation) Act (NT) (Act).

Facts

The applicant, Mr Edwards, sustained a reasonably severe injury to his right knee as a result of a motor vehicle accident at Palmerston in December 2002. In May 2003, Edwards applied for and was paid benefits for his loss of earning capacity under section 13 of the Act from that date.

Subsequently, the relevant Authority reviewed Edwards' case and in April 2007, it was determined that Edwards was not entitled to section 13 benefits from 28 February 2007. The basis of this determination was that the medical evidence showed that Edwards was capable of engaging in full time employment as of the retrospective date.

Edwards complained about the determination made and also complained that the retrospective cancellation of benefits was unlawful and in breach of the operation of the Act. The Supreme Court found against him on both these points.

Decision

Under the Act, compensation ordinarily payable is not payable for any weekly period that the Authority determines the person is capable of working full time, regardless of the type of work. The Court found that Edwards, while clearly suffering a residual physical limitation, was capable of performing a number of identified sedentary positions on a full time basis. It was determined that a medical assessment of his earning capacity for the purposes of section 13 must only consider residual disabilities and not factors such as the availability of employment or his level of education or vocational skills.

On the second point, it was determined that there was no reason to find that 'the relevant weekly period' could not be a weekly period preceding the date of determination. As such, there was no reason why the decision of the Authority should not be retrospective.

CGU Insurance Limited v CW Fallaw & Associates Pty Ltd [2008] VSC 197

Facts

This claim arose from a failed construction of a domestic building. CW Fallaw & Associates Pty Ltd (Fallaw) which certified the design of a slab and footings for the domestic building was sued by the building owner (as was the principal contractor) in the Victorian Civil Administrative Tribunal. This action settled, save for an indemnity dispute between Fallaw and its insurer, CGU Insurance.

Fallaw submitted a claim on its professional indemnity policy with CGU. CGU denied indemnity on the basis of the 'known claims and circumstances' exclusion. CGU alleged that Fallaw was aware or should have known of such circumstances by virtue of its design and endorsement of the plans for the building.

Trial

The Tribunal, while raising some instances of blameworthiness on the part of Fallaw, decided that the type of knowledge held by Fallaw was not actual knowledge of the kind required to trigger the exclusion.

Interestingly, the Tribunal refused to allow CGU to call an important witness. CGU wanted to call evidence from one of the building owners in order to establish the state of knowledge of Fallaw. The Tribunal refused permission on the basis that the witness had been present throughout the hearing and CGU should have made arrangements earlier to call the witness.

CGU appealed.

Appeal

The Supreme Court of Victoria agreed with CGU's submission that the Tribunal erred in not allowing CGU to adduce evidence from one of the building owners. The Court found that the evidence sought to be called from this witness was relevant to a central issue about which no other witness had given evidence.

The Court was also satisfied that Fallaw would not have suffered prejudice if the witness had been allowed to give evidence. On the operation of the relevant exclusion, CGU made two submissions. First, it argued that the Tribunal applied the wrong test in finding that the state of knowledge of Fallaw was not actual knowledge of the kind required to trigger the exclusion. CGU noted that the Tribunal had focussed on the question of blameworthiness of Fallaw rather than applying the specific words of the exclusion. The policy specified that the exclusion would apply where it could be concluded that 'a reasonable person' would have thought that there was a real possibility of an allegation against the insured.

Second, CGU submitted that if the Tribunal had considered the facts proven by the documentary evidence (read with the concessions made at trial), it would have found that on the balance of probabilities, CGU was entitled to refuse indemnity.

The Court accepted both of these submissions from CGU. The orders made by the Tribunal were set aside and the matter was remitted for re-hearing to the Tribunal.

Middleton v Erwin [2009] NSWSC 108

In November 2002, the claimant was severely injured when his vehicle was struck by a semi trailer driven by the first defendant, Erwin. The accident was caused by a sudden failure of the steering mechanism (a loose universal joint) in the truck, which was manufactured by the second defendant (the manufacturer).

The claimant sued both Erwin and the manufacturer.

Claim against Erwin

The claimant alleged that Erwin failed to properly service or maintain the truck. At trial, Erwin confirmed that he personally attended to the routine maintenance as required. He agreed that between the date of purchasing the truck and the date of the incident, he did not undertake any preventative maintenance in relation to the steering. During the course of the trial, Erwin conceded that he was in breach of his duty of care to the claimant but contended that the claimant had failed to establish a causal connection between the admitted breach and the failure of the steering mechanism.

Erwin argued that there was no expert evidence to confirm what specific preventative maintenance would have been carried out if the claimant had arranged servicing by a qualified mechanic (in the absence of a specific complaint about the steering).

The Court rejected this argument and said that Erwin was aware of the potentially catastrophic consequences of a steering failure in a vehicle of this type. The Court was satisfied that (even in the absence of any specific complaints about the steering) proper inspection would have included inspection of the universal joint and that would have revealed the worn state of this component before the sudden failure.

Claim against the manufacturer

The claimant noted that a manufacturer is under a duty to design a machine so as to keep its inherent dangers to a minimum. The claimant argued that the use of a universal joint in the steering column was negligent in that such a design was dependent on the owner of the vehicle arranging regular maintenance. The claimant noted that this contingency could have been wholly avoided by the use of a welded joint in the manufacturing process.

The manufacturer argued that the case raised against it was fatally afflicted with the reasoning of hindsight. It noted that its duty of care was limited to taking such care as a reasonably prudent manufacturer would take in the circumstances. It emphasised that any enquiry about a breach of duty must identify the reasonable person's response to foresight of the risk of the occurrence.

The Court found in favour of the manufacturer. It found that there was no persuasive reason for concluding that the common practice of producing universal joints in the steering mechanism fell short of what reasonable care required. The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to liability.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions