Common Law Case Study Australia


$1.26 million awarded for workplace injury

Following a workplace accident a Melbourne man was awarded $1.26 million in compensation for his pain and suffering and loss of employment in the Supreme Court of Victoria yesterday.

Linton Shirreff, 49 of Glenroy, was employed by a company controlled by well-known Melbourne businessman Gary Morgan to supervise and work on the refurbishment of a building at Collins Street in the Melbourne CBD. The accident happened during June 2002 when the ground floor lift was not working, and Mr Shirreff’s employer instructed him to "fix it immediately".

Mr Sherriff was on a ladder inside the lift shaft attempting to fix the problem when he fell and sustained a devastating injury to his right foot.

Since that day, Mr Shirreff has suffered severe and unrelenting pain, and restriction of movement, in his right foot. He has been advised to amputate the foot, and he has accepted this is inevitable at some time in the future. As a result of this traumatic workplace accident, Mr Shirreff suffers severe stress, anxiety and depression.

With the help of Slater & Gordon worker’s compensation lawyer, Mr Shirreff successfully sued his employer for negligence following a 10 day hearing.

Supreme Court Justice Robson found Mr Shirreff’s employer, Elazac Pty Ltd, had breached its duty of care, and this breach had caused shocking injuries. Justice Robson awarded damages to Mr Shirreff for pain, suffering and loss of amenities in life of $320,000 plus damages for pecuniary loss of $940,000, totalling $1.26 million, plus a substantial amount of interest.

"This win now means I can have some hope for my future."

"Clearly, a safe and systematic workplace would have prevented such an accident. Cases like this show how important it is for employers to take responsibility for workplace safety - as the consequences can be devastating."

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Jury awards Victorian worker $250,000 for broken ankles

A Victorian woman was awarded $250,000 in the Country Court last week after the Victorian WorkCover Authority (VWA) refused to offer any compo for her broken ankles.

Slater & Gordon said the client was forced to take the matter to trial after VWA refused to make an offer of compensation for pain and suffering for the workplace accident.

Slater & Gordon said the 57 year old client was employed as a sales person when she had a severe falldown a set of carpeted stairs at her workplace in south-eastern Melbourne.

“The client suffered injuries to her back and neck and broke both of her ankles in the fall. She had been descending down the stairs at a normal pace before slipping and falling”.

“The injury highlights the need for employers to provide their employees with a safe workplace.”

Slater & Gordon said the client was hospitalised, had surgery to both ankles and had to undergo rehabilitation before being able to return home.

“She was limited to a wheelchair for about two months after the accident and then had to take part in exhaustive and demanding physiotherapy so she could learn to walk again.”

“To this day she continues to need treatment for pain to her ankles, back and neck”.

Prior to last week’s judgement the VWA would only grant his client a Serious Injury Certificate in recognition of her pain and suffering but refused to offer any damages.

“But last week the jury of six unanimously awarded her $250,000 for pain & suffering damages after a five day hearing,” Slater & Gordon said.

“This win was worth the fight and demonstrates that a worker will receive fair compensation if they are injured in a workplace that is not safe."

Please note the client in this matter does not want to be identified.

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Former residential care worker awarded more than $400,000

A former residential care worker has been awarded more than $400,000 in compensation after a jury found that his employer was negligent and did not satisfy its contractual obligations to provide him with a safe working environment and adequate support.

Slater & Gordon lawyer, Tony Kenyon said after a thirteen day hearing his client, Mr Kevin Loiterton, was successful in his damages claim against MacKillop Family Services in the County Court.

Mr Kenyon said Mr Loiterton had worked as a residential care worker for MacKillop Family Services between 2004 and 2006, primarily caring for young people at residential units in Keilor Park, Werribee and Hoppers Crossing.

Mr Kenyon said Mr Loiterton was required to work in a highly stressful environment, in which he was subjected to numerous assaults, both physical and verbal.

Mr Kenyon said the win provided enormous solace to Mr Loiterton in confirming that the organisation failed to provide proper workplace support and it would give his client some financial security.

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Former manufacturing worker wins super legal battle

A former manufacturing worker who took on the trustee of her superannuation fund and its insurer has triumphed in the County Court of Victoria and been awarded a disability insurance benefit, ending a four-year legal battle.

Slater & Gordon lawyer, Dina Tutungi, said the win served as a warning to superannuation members nationally that they should not always accept the decision made by their funds and insurers, if their claim for
a Total and Permanent Disability Benefit (TPD) benefit was rejected.

Ms Tutungi said her client, Mrs Regina Kawka was employed on a packaging production line at a business in Parkville, Victoria for more than a decade before she became unable to work due to physical injuries.

"The physical work that she performed in her job involved fast and repetitious movements, up to 1000 a day, moving small bottles on conveyor lines," Ms Tutungi said.

"My client developed progressive pain in her shoulders, elbows, forearms and legs, leading to a number of conditions including long-term chronic pain. After several attempts at rehabilitation and attempts to return to work, Mrs Kawka's employment was terminated in 2002."

She said Mrs Kawka took legal action after the trustee of Australian Super and its insurer (AXA) repeatedly rejected her claim for a TPD benefit.

"TPD benefits exist as a type of insurance cover through superannuation funds and can be paid out when someone is unable to return to work, regardless of whether the injury or illness is work related," she said.

"Our case involved considerable research and preparation but we were able to show that the trustee of the superannuation fund and its insurer failed to act in good faith towards Mrs Kawka when assessing her claim.

"We presented considerable medical evidence to the court that showed that she was totally and permanently disabled for work."

Ms Tutungi said many people were not aware that they could claim a TPD benefit through their superannuation fund or that they could challenge a rejected claim.

"In most cases, a TPD benefit is paid for by premiums deducted from your super and it can be a substantial amount. People often mistakenly assume that the benefit is only available for work related injuries and some are even unaware that the benefit even exists."

"It is to Mrs Kawka's credit that she had the courage to take on the trustee and its insurer and challenged the rejection of her claim."

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$1 Million awarded for injured back

A 31-year-old Keysborough steelworker has been awarded more than $1 million by a Supreme Court jury after suffering a back injury that means he will never work again. Dong Pham had worked at Stramit's Scoresby manufacturing site since leaving his school. It was first job, and now it will be his only job.

Slater & Gordon lawyer said Mr Pham first injured his back in 2003 due to continuously lifting heavy steel beams from a conveyor belt. A lower-back spinal fusion failed and he continues to suffer daily pain.

"Mr Pham complained to his employer for 18 months that his back was hurting, but he was ignored and had to keep on working," our Slater & Gordon lawyer said.
"He was also given no training in a task which was clearly beyond the ability of one or two men."

During the two-week trial in the Supreme Court of Victoria, a six-person jury heard from six doctors for Mr Pham. Evidence that he will never work again was uncontested.

An engineer told the trial that a crane could have been used to lift the steel sections that injured Mr Pham.

The jury awarded him $250,000 for pain and suffering, and $817,000 for pecuniary loss. The latter amount is high because of Mr Pham's relatively young age and the earning he will now lose for the rest of his life.

WorkCover will also continue to pay Mr Pham's medical expenses for the rest of his life.

Get in touch about making a Workers Compensation claim.

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It was another good year for high profile cases reported in the media in 2016. The seven landmark cases chosen below range from cases with important legal ramifications, to some that haven’t changed the law much, but have seized the public imagination – and indignation. From solicitors’ duties to money-grabbing politicians, the legal landscape in 2016 enlightened and entertained us.

1. Intending to be reckless? Best to be reckless without any intention

In Zaburoni v The Queen (2016) 256 CLR 482 the High Court has emphasised the importance of distinguishing between reckless behaviour and behaviour involving intention to transmit HIV.

The appellant, Mr Zaburoni, was found guilty of unlawfully transmitting a serious disease with intent to transmit the disease contrary to the Criminal Code (Qld), s 317(b).

Mr Zaburoni knew not to engage in sexual intercourse without taking protective measures, however he persuaded the complainant to engage in unprotected sex over a protracted period and after the complainant was diagnosed as HIV positive, the appellant told a number of lies both to her and to the police which suggested consciousness of guilt.

The High Court held that common law concepts of foreseeability, likelihood and probability are not relevant to proof of the element of intention for the offence created by the Criminal Code, s 317(b).

Where proof of the intention to produce a particular result is an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. Knowledge or foresight of the result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code. Proof of the s 317(b) offence required the prosecution to establish beyond reasonable doubt that, at the time the appellant engaged in unprotected sexual intercourse with the complainant, he had as a purpose the transmission of HIV to her.

A rational inference open on the evidence was that the appellant was reckless of the risk of transmitting HIV to the complainant. Such an inference made it less easy to reach a conclusion that the appellant intended to transmit the disease through frequent unprotected sexual intercourse. The evidence also fell well short of proving that the appellant believed that it was virtually certain that he would transmit HIV by regular unprotected sexual intercourse.

2. Advocates still immune in court – but it’s settled they can be sued for negligent settlements

In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572 the High Court was again asked an important question about the extent and continued existence of the advocate’s immunity from suit, especially in the context of settlement agreements.

The High Court declined to reconsider previous decisions that held that the advocate’s immunity is attracted by the participation of the advocate, as an officer of the court, in the quelling of controversies by the exercise of judicial power. Because of this, immunity does not extend to acts or advice of the advocate that do not move litigation towards a determination by a court, being most commonly settlement agreements.

The settlement agreement and the substantive content of the rights and obligations established in them are determined by the parties themselves without any determination by the court. As such, there is no advocate’s immunity from suit where negligent advice is given as to the settlement of cases.

3. Where there’s a will, should one warn there could be a family member finding a way?

In Badenach v Calvert (2016) 90 ALJR 610 the High Court provided some important clarification on the nature and scope of a solicitor’s duty to exercise reasonable care and skill, particularly in respect of third parties.

The appellant solicitor, Mr Badenach, was retained by a client, Mr Doddridge, to prepare a will in which the latter proposed to give his whole estate to the beneficiary, Mr Calvert. Mr Badenach neglected to ask Mr Doddridge whether there were any family members who might possibly make family provision claims. After Mr Doddridge died, an estranged daughter, Patrice, successfully claimed provision, as a result of which the estate available to Mr Calvert was significantly depleted. Mr Calvert sued Mr Badenach, and his firm, for professional negligence, claiming that, had the solicitor made the appropriate inquiry, he ought to have advised Mr Doddridge as to the means of defeating the family provision claim that in fact eventuated. The loss claimed was expressed as the loss of an opportunity or prospect that Mr Doddridge might have given instructions to take steps to protect Mr Calvert’s position.

The High Court held that a solicitor’s duty of care is limited to a person whom the testator actually intends to benefit from the will and is confined to requiring the solicitor to take reasonable steps to benefit that person in the manner and to the extent identified in the solicitor’s instructions. In this case, Mr Badenach’s omission to warn Mr Doddridge of the risk that his daughter might claim against the estate was not an omission to take steps integral to carrying out instructions that the estate be given to the respondent. In the absence of further instructions, which would necessarily have expanded the scope of the retainer, it could not be concluded that there was any omission of Mr Badenach falling within the scope of the duty of care owed by him to Mr Calvert.

4. The High Court dismisses our collective gasps

Many people who have forgotten to make their credit card payment in time have gasped at the late payment fee that is imposed. In Paciocco v Australia and New Zealand Banking Group Ltd (2016) 90 ALJR 835, the High Court was asked to hear our collective gasps. They heard, but weren’t impressed.

The appellant, a business owner and head of the representative proceeding, argued that various late payment fees were penalties and/or unconscionable or unfair and contrary to various provisions of the Australian Securities and Investments Commission Act 2001(Cth), the Australian Consumer Lawand the National Consumer Credit Protection Act 2009(Cth).

However, the High Court found that the appellants had failed to establish that the late payment fees were a penalty and that the relevant test is whether a provision for the payment of a sum of money on default is out of all proportion to the interests of the party intended to be protected by that provision. A sum stipulated for payment on default is a penalty if it bears no relation to the possible damage to or interest of the innocent party. Here, ANZ Bank had an interest in receiving timely payment of the credit extended to its customers. Late payment impacted the bank’s interests through operational costs, loss provisioning and increases in regulatory capital costs.

It was also noted that Mr Paciocco had chosen to pay late and incur late payment fees as a matter of his own convenience. Given that ANZ Bank was not distinguished in this case from other banks in the marketplace, it was unlikely the bank took advantage of him in a way that met the statutory descriptions of “unconscionable conduct”, “unjust transactions” or “unfair terms”.

5. No need to follow the Brits, it’s fine to be over-criminalised

Miller v The Queen (2016) 90 ALJR 918 gave the High Court an opportunity to decide whether to follow a high profile decision of the Supreme Court of the United Kingdom and Privy Council by similarly holding that that the common law took a “wrong turn” and that there is no place for extended joint criminal enterprise liability in the common law.

Here, two of the four appellants had been drinking when they became involved in an altercation with two other men. The two appellants then left the scene and returned home, telling the other two appellants of the incident. All of the men then decided to re-visit the victims and violence ensued. One of the appellants, Betts, stabbed the deceased. Each appellant was charged with murder in relation to one victim and aggravated assault in relation to both victims.

Although Betts was the only man which the Crown contended knowingly committed the murder, the three other men were convicted of murder via “extended joint criminal enterprise”. This doctrine from McAuliffe v The Queen (1995) 183 CLR 108 was found to be satisfied if each man intended to commit an assault but foresaw the possibility that one of the other men might kill or inflict serious injury.

On appeal to the High Court of Australia, the appellants invited the court to abandon or confine the doctrine enunciated in McAuliffe v The Queen in light of the decision of the Supreme Court of the United Kingdom and Privy Council in R v Jogee [2016] 2 WLR 681. In Jogee, the court held that the doctrine of extended joint criminal enterprise, where there was a “possibility” of a more serious crime being committed, was an over-criminalisation and extended liability too far.

However, the High Court held that the principle of extended joint criminal enterprise liability stated in McAuliffe v The Queen remains part of the common law of Australia notwithstanding R v Jogee.

6. Choose your jury foreperson wisely – or at least pay attention

In NH v Director of Public Prosecutions (SA) (2016) 90 ALJR 978 the High Court was asked to decide whether the Supreme Court of South Australia has an inherent power to amend or set aside a verdict delivered by a jury foreperson.

In this interesting case, four appellants were acquitted of murder but convicted of the alternative offence of manslaughter. When delivering the jury’s verdicts, the foreperson, in the sight and hearing of the other jurors and without any dissent or action by them, informed the court that the required majority of at least 10 jurors had agreed on verdicts of not guilty of murder in relation to each appellant.

After the jury had been discharged, the foreperson informed a court officer that he had made a mistake. In fact, there had not been a majority of 10 or more in favour of a verdict of not guilty of murder in relation to any of the appellants.

The Supreme Court of South Australia (Full Court) quashed both the murder and manslaughter verdicts and directed a new trial on the charge of murder. The Full Court found that the verdicts of not guilty of murder were unlawful, as the required majority had not been reached. It characterised the unlawful verdicts as giving rise to an abuse of process that enlivened an inherent power to quash the unlawful acquittals.

However, the High Court held that neither an innocent error by a jury foreperson in delivering a verdict nor acquiescence by other members of the jury constitutes an abuse of process. As such, the Supreme Court of South Australia does not have inherent power to amend or set aside a verdict delivered by a jury foreperson in the sight and hearing of the other jurors and where no dissent or correction had been made by them and which has been translated by the trial judge into a perfected judgment of acquittal or conviction.

7. Grasping for a Gold Card – politicians try ‘The Castle’ defence to get their ‘property’ back

In Cunningham v Commonwealth (2016) 90 ALJR 1138 the High Court was asked to decide whether four retired politicians had had their property acquired otherwise than on just terms when their travel benefits were removed.

The challenge, under the Constitution, s 51(xxxi), drew comparisons with the popular 1997 Australian film ‘The Castle’, where that section of the Constitution was used to stop a family home being acquired to extend an airport runway.

The four retired MPs challenged the validity of various provisions of statutes that related to their retirement allowances and travel benefits (‘Life Gold Passes’) for former parliamentarians and also of the powers of the Remuneration Tribunal. The plaintiffs contended that those allowances amounted to property rights within the meaning of the Constitution, s 51(xxxi), and that changes to those provisions and the connected tribunal determinations constituted or authorised the acquisition of their property otherwise than on just terms.

The High Court held that neither the sections under challenge nor the determinations contravened the requirements of s 51(xxxi) as the rights to retirement allowance under the Parliamentary Contributory Superannuation Act 1984 (Cth) were inherently liable to variation, being dependent on the ambulatory will of the Commonwealth Parliament. For the same reasons, amendments to the Members of Parliament (Life Gold Pass) Act 2002 (Cth), reducing the number of free domestic trips annually available to former parliamentarians were not laws with respect to the acquisition of property.

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