Case Law and Legislation Update

1. Case Law andLegislation Update Steve Herd Senior Associate MurphySchmidt

2. Civil Liability and Other Legislation Amendment Act 2009 – The Act was assented to on 17 March 2010 and will amend the following legislation: 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

3. 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: 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.

4. 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.

5. 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: 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); The recipient was a member of the injured person’s household when the relevant injury happened; Before the relevant injury happened the injured person provided the services to the recipient; The recipient was, or will be, incapable of performing the services personally because of their age or physical or mental incapacity; 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 The need for the services is reasonable in all the circumstances.

6. 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.

7. 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.

8. 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 = “Declared Costs Limit” = $2,950 $30,000 = “Lower Offer Limit” = $35,340 $50,000 = “Upper Offer Limit” = $58,900

9. 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.

10. 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.

11. [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.

12. 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.

13. 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.

14. 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]

15. 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.

16. 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: Leighton Contractors Pty Ltd – Principal Contractor Downview – concreter sub-contracted to Leightons; Mr Still and Mr Cook – sub-contracted to Downview for the concrete pumping and supplied the pipes and equipment; Mr Stewart and Mr Fox – sub-contracted to Still and Cook to undertake the work.

17. [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.

18. [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.

19. [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)

20. 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%.

21. [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.

22. 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”.

23. 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.

24. [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.

25. 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.

26. [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.

27. [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.

28. 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.

29. [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.

30. 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.

31. 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.

32. 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.