Category Archives: Workers Compensation

South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16

South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (16 February 2007).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2007/16.html

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Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336

ON 23 APRIL 2001, Justice Peter McClellan of the Supreme Court of NSW delivered Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 (23 April 2001).

“Judgment on application for verdict by direction

negligence action

whether plaintiff precluded from putting a case in negligence to jury

whether evidence of breach of duty

whether evidence which could establish that the taking of any step would have eliminated risk of plaintiff’s injury

whether evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable

whether rule in Browne v Dunn has application

s 23(4), s 42(1) Factories, Shops & Industries Act 1962″

Sharp had sought damages from her employer alleging that her exposure to tobacco smoke as a barmaid resulted in her suffering from laryngeal cancer.  The case was heard before a jury.

The judgment led to jury directions which resulted in a finding that the cancer was caused, or materially contributed to, by the employer’s negligence.

On 2 May 2001, the jury awarded Sharp damages of $466,000 plus costs.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/336.html

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Herrmann v Cammeray Golf Club [1996] NSWSC 568

Herrmann v Cammeray Golf Club [1996] NSWSC 568 (26 November 1996).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/1996/568.html

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Dust Diseases Tribunal

ON 21 JULY 1989, the NSW Dust Diseases Tribunal (DDT) http://www.dustdiseasestribunal.lawlink.nsw.gov.au/ was established through the enactment of the Dust Diseases Act 1989 http://www.legislation.nsw.gov.au/viewtop/inforce/act+63+1989+FIRST+0+N/.

The DDT is a specialist tribunal with the exclusive jurisdiction to determine damages claims for death or injury arising from dust-exposure related diseases such as asbestosis and mesothelioma. The tribunal’s special purpose is to serve the interests of justice by expediting claims in circumstances where the claimants are in the advanced stages of illness.

The first judge to hear a case in the tribunal was Judge J L O’Meally AM RFD a tribunal Member (1989 to 1995), Senior Member (1995 to 1998) and President (1998 to 2011).

The Tribunal’s current judges are:

  • President Justice R O Blanch AM
  • Judge J P Curtis
  • Judge W P Kearns SC
  • Judge Finnane RFD QC
  • Acting Judge P J Johns

The court is situated at 12th Floor, John Maddison Tower, 88 Goulburn Street, Sydney NSW 2000. For all enquiries call (02) 9377 5440.

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Safety, Rehabilitation and Compensation Act 1988 (Cth)

ON 1 JULY 1998, the substantive provisions of the Commonwealth Safety, Rehabilitation and Compensation Act 1988 commenced. The Act was initially called the Commonwealth Employees’ Rehabilitation and Compensation Act 1988.

http://www.austlii.edu.au/au/legis/cth/consol_act/sraca1988368/

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Staska v General Motors-Holden’s Pty Ltd [1972] UKPCHCA 1

ON 28 MARCH 1972 the Privy Council delivered Staska v General Motors-Holden’s Pty Ltd [1972] UKPCHCA 1; (1972) 123 CLR 673 (28 March 1972), an appeal of a South Australian workers compensation case. Since then, much has changed with respect to Privy Council appeals, workers compensation and the manufacture of Holden cars in Australia.

http://www.bailii.org/uk/cases/UKPC/1972/1972_4.html

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Dey v Victorian Railways Commissioners [1949] HCA 1

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (22 February 1949).

“Workers’ Compensation – Injury by accident arising out of or in course of employment – Death of worker – Negligence of employer – Option of dependants to apply for compensation or take other proceedings – Award of compensation obtained by widow on behalf of herself and children – Effect of award as barring claim by dependants under Lord Campbell’s Act – Workers’ Compensation Acts 1928- 1946 (No. 3806 – No. 5128) (Vict.)* – Wrongs Act 1928 (No. 3807) (Vict.), Part III. – The 1946 Workers’ Compensation Rules, rr. 8, 81.*
Practice – Supreme Court (Vict.) – Dismissal of action – Abuse of process – Inherent jurisdiction – Rules of the Supreme Court (Vict.), Order XXV., rr. 2, 4.”

http://www.austlii.edu.au/au/cases/cth/HCA/1949/1.html

A widow who had received a workers compensation award for her late husband’s death was not entitled to maintain a compensation to relatives action in her own right but the infant children were competent to sue by their next friend.

Per Dixon J at 91:

“The application [to dismiss proceedings on the grounds of being frivolous, vexatious and abuse of process] is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

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