ON THIS DAY in 1895, Oscar Wilde was convicted of gross indecency and sentenced to two years hard labour.
http://www.oldbaileyonline.org/browse.jsp?id=def1-425-18950520&div=t18950520-425#highlight
Sydney, Australia
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Sydney Lawyers
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 | 25 May 1966
ON THIS DAY in 1966, the Privy Council delivered Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 (25 May 1966).
http://www.bailii.org/uk/cases/UKPC/1966/1.html
A person is negligent if they fail to prevent a real risk that is reasonably foreseeable. A real risk is one in the mind of a reasonable person “which he would not brush aside as far-fetched”. This does not depend on the actual risk of occurrence.
Sydney, Australia
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Rights of the Terminally Ill Act 1995 (NT) | 25 May 1995
ON THIS DAY in 1995, the Northern Territory Parliament passed the Rights of the Terminally Ill Act 1995 (NT).
http://www.austlii.edu.au/au/legis/nt/consol_act/rottia294
The Act, which took effect on 1 July 1996, legalised euthanasia in the Northern Territory until the Commonwealth Parliament subsequently enacted the Euthanasia Laws Act 1997.
Sydney, Australia
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Negligence – Duty of care – Safe system of work – Work injuries
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).
“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”
Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.
On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.
A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.
The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.
An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.
Sydney, Australia
1300 00 2088
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 | 13 May 1986
ON 13 MAY 1986, the High Court of Australia delivered Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).
“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”
Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.
On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.
A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.
The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.
An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.
Sydney, Australia
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Equity – Guarantee – Mortgage – Guarantor under disability – Unconscionable bargain – Misrepresentation
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 (12 May 1983).
http://www.austlii.edu.au/au/cases/cth/HCA/1983/14.html
“Equity – Mortgage and guarantee – Right to set aside – Unusual transactions between bank and customer – Bank’s failure to disclose to mortgagor guarantor – Misrepresentation.
Guarantee – Guarantor under disability – Dealing with bank – Bank knowing of disability – Unconscionable bargain – Onus of proof – Whether transaction should be set aside unconditionally.”
An elderly Italian migrant couple had mortgaged land they owned as a guarantee for a loan from the bank to their son’s business. The business then went into liquidation and the bank demanded payment of the guarantee and then attempted to exercise a power of sale over the land.”
The Amadios argued that the guarantee and mortgage should set aside as:
- they spoke limited English;
- they did not receive independent advice and were not advised to do so;
- they were not aware of their son’s financial situation, although the bank was; and
- they mistakenly believed that the liability was limited to $50,000.
The court held that the mortgage and guarantee must be set aside as it was unconscionable for the bank to enter into those transactions in circumstances where the bank through it’s superior bargaining power had gained an unconscientious advantage to the detriment of the Amadios who suffered a special disability.
Sydney, Australia
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Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 | 12 May 1983
ON THIS DAY in 1983, the High Court of Australia delivered Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 (12 May 1983).
http://www.austlii.edu.au/au/cases/cth/HCA/1983/14.html
“Equity – Mortgage and guarantee – Right to set aside – Unusual transactions between bank and customer – Bank’s failure to disclose to mortgagor guarantor – Misrepresentation.
Guarantee – Guarantor under disability – Dealing with bank – Bank knowing of disability – Unconscionable bargain – Onus of proof – Whether transaction should be set aside unconditionally.
An elderly Italian migrant couple had mortgaged land they owned as a guarantee for a loan from the bank to their son’s business. The business then went into liquidation and the bank demanded payment of the guarantee and then attempted to exercise a power of sale over the land.”
The Amadios argued that the guarantee and mortgage should set aside as:
- they spoke limited English;
- they did not receive independent advice and were not advised to do so;
- they were not aware of their son’s financial situation, although the bank was; and
- they mistakenly believed that the liability was limited to $50,000.
The court held that the mortgage and guarantee must be set aside as it was unconscionable for the bank to enter into those transactions in circumstances where the bank through it’s superior bargaining power had gained an unconscientious advantage to the detriment of the Amadios who suffered a special disability.
Sydney, Australia
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Children – Intellectual disability – Sterilisation – Family Law
Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992).
“Children – Intellectual disability – Sterilization – Power of parents to consent – Assault – Parens patriae jurisdiction of court – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187 188.
Family Law (Cth) – Family Court – Jurisdiction – Welfare – Parens patriae – Intellectually disabled child – Sterilization – Power of Court to authorize operation – Effect of authorization on criminal law – Family Law Act 1975 (Cth), ss. 63, 64, 64E – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187, 188.”
The court held that the parents of a 14 year old mentally retarded girl from the Northern Territory could not lawfully authorize a sterilization procedure on their child without an order of a court.
The court held that the Family Court of Australia has the jurisdiction to authorize the carrying out of a sterilization procedure but could not approve consent being given to the parents unless the court authorizes the procedure.
Whilst parents or guardians may authorize or consent to the carrying out of a therapeutic treatment of their child, they have no such power regarding non-therapeutic treatment.
Sterilization of an intellectuallly disabled minor falls outside of the ordinary scope of parenal powers if the procedure is not obviously necessary.
Children have the right to personal integrity under domestic and international law. Procedures, such as sterilization, are “invasive, irreversible and major surgery”. It is up to the court, not the parents or guardians, to decide the appropriate circumstances that are in the best interests of the child.
http://www.austlii.edu.au/au/cases/cth/HCA/1992/15.html
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Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla RSL Club [2001] NSWSC 336 | 23 April 2001
ON THIS DAY in 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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Tabet v Gett [2010] HCA 12 | 21 April 2010
ON 21 APRIL 2010, the High Court of Australia delivered Tabet v Gett [2010] HCA 12 (21 April 2010).
“NEGLIGENCE – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent’s delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.
NEGLIGENCE – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance.
WORDS AND PHRASES – “balance of probabilities”, “damage”, “gist of the action”, “loss of a chance of a better outcome”, “standard of proof”.”
http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html
The law of negligence does not allow for damages to be awarded when the breach of duty of care causes less than a 50% chance of a better outcome.
Sydney, Australia
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Peter O'Grady Lawyer 