Welcome to this week's edition.
Due to technical reasons, this week's newsletter has been circulated a day earlier than usual. The first 'new look' newsletter will appear next week.
Tchenguiz v Imerman; Imerman v Imerman [2010] EWCA Civ 908; [2010] 2 FLR 814
The obtaining of a spouse's financial information from a computer without knowledge or consent amounted to a breach of confidence. Additionally, Hildebrand v Hildebrand did not provide any basis for the conduct being lawful. An appropriate test to determine whether such material was confidential was whether the spouse had a reasonable expectation of privacy in respect of the information (as in Campbell v Mirror Group Newspapers [2004] UKHL 22).
The Los Angeles Times reports that a December report by the surgeon general's office outlined a host of changes that tobacco companies have made over the years to render smoking easier to start and harder to quit. Strange to say, though, the government knows very little about these changes or when they took place or precisely what they entailed. Tobacco companies were never required by law to divulge the information, although some of it came out in class action suits against the firms. The Times notes that under a 2009 law that gave the FDA regulatory power over tobacco, the FDA directed the companies to apply for permission if they want to change their products in any way and to disclose what the change is intended to accomplish. It is predicted that the companies will be less willing to even start the process once they know they'll be held accountable.
18 Dutch victims of Vioxx, and their relatives, have filed suit against Merck Inc. and its Dutch subsidiary MSD, in the Netherlands. In an earlier decision in November 2009, the District Court had ruled the following:
1. The plaintiffs may choose to primarily request the court to find that Vioxx is a defective product, without requiring an immediate decision on causation and damages in each of the individual cases.
2. Therefore, the plaintiffs cannot yet be required to produce their full medical records.
3. The defendants are required to produce the registration file (containing the documents that the defendants have provided to the regulatory bodies before receiving permission to distribute Vioxx on the Dutch market) and their marketing plans on the distribution of Vioxx.
In a recent decision on 11 January 2011, the Amsterdam Court of Appeal rejected the appeal of Merck and MSD against the decision of the District Court on 11 November 2009. All the defendants' arguments were rejected and the first ruling of the District Court was fully confirmed.
In 2007, Merck entered into a settlement on behalf of American victims of Vioxx. An amount of $4.85 billion (US) was paid by Merck. Non-American victims of Vioxx were excluded from the settlement. Source.
AMABA Pty Ltd (under NSW administered winding up) v Booth; AMACA Pty Ltd (under NSW administered winding up) v Booth [2010] NSWCA 344 (10 December 2010)
Slater & Gordon report that this recent court decision clears the way for asbestos claims against brake-liners manufacturers. Asbestos was used as a component in brake linings until December 2003, when an Australia-wide ban on the importation, manufacture and use of all forms of asbestos and asbestos-containing products took effect.
The Law Council of Australia has prepared a submission on the exposure draft of the Competition and Consumer Amendment Bill (No. 1) 2011 (Cth). Click here to read the submission.
The Law Council expressed concerns about the adoption of the prohibition on private disclosure of pricing information to competitors, and the prohibition on disclosure of price, capacity or strategic information for the purpose of substantially lessening competition, as proposed in the Bill.
Ly Eng v Goodman Fielder Limited [2011] FWA 317 (18 January 2011)
A truck driver who was caught urinating in the workplace was unfairly dismissed, according to Fair Work Australia, which accepted (without supporting medical evidence) that a medical condition had prevented him from using his employer's toilet facility.
The bread-delivery truck driver filed for unfair dismissal in September 2010, after Goodman Fielder Ltd terminated his employment (albeit with four weeks' pay in lieu of notice) for urinating into a stormwater drain at its Clayton South bakery loading bay and then failing to wash his hands.
Although the worker expressed remorse over the conduct, he submitted that he had been under time-pressure to continue deliveries and that he suffered from a medical condition, symptomised by pain and an urgent need to urinate. He further submitted that his work record was otherwise unblemished, that he had attempted to conceal his conduct from public view, and that as far as not washing his hands was concerned, he always wore gloves when handling food products.
Cmr Gooley concluded that the dismissal was unfair in that Goodman Fielder did not have a valid reason for terminating the worker's employment. She also gave weight to the worker's generally good conduct record and his ‘deep regret' over his conduct.
Cmr Gooley made orders reinstating the worker to his former role (or an alternate position no less favourable than his former role) with continuity of his service, and that he be back paid the amount he would have earned in the period from his dismissal until the date of his reinstatement.
A company that operates cruise ships has been granted a temporary exemption from the provisions of the Age Discrimination Act 2004, to allow it to control the number of school leavers taking a cruise for their ‘schoolies' break.
Carnival plc (t/a Carnival Australia), which operates P & O Cruises Australia and Princess Cruises Australia, applied for the temporary exemption because it wished to prevent ‘unauthorised events' that were likely to compromise the health, safety and security of passengers and crew on its ships. Carnival defined an ‘unauthorised event' as a large-scale event, associated with excessive or anti-social behaviour, including the abuse of alcohol. A ‘schoolies' event was listed as an example of an ‘unauthorised event'. Click here to read more.
WA president, Tom Percy QC, speaks to the ABC on whether law degrees should be available online.
In the article, Mr Percy, speaking as ALA WA president, welcomed the flexibility of online degrees but said law students needed hands-on work experience, something ECU's online degree did not offer.
"I would think that like most other law degrees there would have to be a practical component," he said.
To view the whole article, see: http://bit.ly/g36Dbl
ALA director, Greg Barns, spoke with the ABC and Tasmanian Mercury newspaper, this week, about potential legal action following the alleged use of capsicum spray on a 13-year-old boy.
Tasmania Police is investigating an incident in Burnie, which can be seen on YouTube, in which an officer is alleged to have repeatedly used the spray on the unarmed boy.
"The use of capsicum spray by law enforcement officials is inherently risky and should not be used on children in any circumstances," Mr Barns said.
"There is strong evidence to suggest that, for people with respiratory conditions, allergies or a heart condition, exposure to capsicum spray may be fatal. A man died in police custody in Melbourne late last year after being sprayed, and in the US there are over 60 reported deaths where capsicum spray was used," he said.
To view the whole ABC article, click here: http://bit.ly/h9eCKb
To view the whole Mercury article, click here: http://bit.ly/gEwnII
A significant drop in the number of people being returned to jail is discussed by ALA director, Greg Barns, in the Tasmanian Mercury newspaper:
Figures released by Corrections Minister, Nick McKim, showed the two-year, return-to-prison rate had dropped from 36.4% in the previous year to 31.7% last year.
Mr Barns spoke to the paper as a group spokesman for Prison Action Reform and said the sharp increase in community-based sentencing was the key to the drop.
Mr Barns said the courts rather than the prison deserved credit.
"The only reason this is happening is because magistrates are using diversions such as mental health and drug diversion to keep people out of jail. The fewer people you have in jail, the lower the recidivism rate," Mr Barns said.
To view the whole article, click here: http://bit.ly/ggS8Tq
ALA director, Greg Barns, used the latest annual review of government services by the Productivity Commission, released this week, to argue for community-based corrections programs rather than jail, for offenders with drug, alcohol and mental health issues.
To view the whole opinion piece, click here: http://bit.ly/haI2v9
The newspaper also printed an editorial quoting Mr Barns. To see the editorial, click here: http://bit.ly/f9BK1i
ALA WA president and director, Tom Percy QC, spread the word on the need for community-based corrections with Perth's 6PR radio program this week.
WA president, Tom Percy QC, speaks with Perth Now about the intolerant, violent and impulsive society we live in. To read the article, click here: http://bit.ly/hgHOhe
Australian newspaper journalist, Sean Parnell, approached ALA director, Greg Barns, on Wednesday for quotes for a story on proposed budget cuts to the High Court that would bring about closure of registries.
Mr Barns made the following points:
It is important that an economically run court does not restrict access to justice. Curtailing court functions could mean longer waiting periods, and justice delayed could be justice denied. The ALA supports Chief Justice French AC in pushing to keep the Court's budget intact.
The ALA would like to acknowledge pro bono work done by NSW barrister and ALA member, Ngaire Watson, this week, in providing a five-page letter of legal advice for an Alice Springs amputee, who is considering a potential medical negligence claim.
ALA president, Brian Hilliard, president-elect, Greg Barns and public affairs manager, Mandy Wyer, met with representatives of the Central Australian Aboriginal Legal Aid Service (CAALAS) during the national conference in Alice Springs last year.
The huge number of Aboriginal personal injury victims, who were suffering after being left without adequate legal advice because of a lack of legal aid funding, was drawn to the ALA's attention during these meetings.
It was at this time that a commitment was made by the ALA to assist personal injury victims on CALAAS' books whenever possible. We can make this commitment only with the generous help of such members as Ms Watson who are willing to assist those who would otherwise be left to founder under the inadequately funded legal aid system.
(Greg Barns has also been briefed to appear for CALAAS in a challenge to decisions by the Northern Territory motor accident insurer towards Indigenous families, also on a pro bono basis).
If anyone else is interested, when time allows, in providing some basic guidance for those with little legal resources, we would love to hear from you.
Such compassion and selflessness will continue to be recognised in this newsletter - so if you hear of others doing similar work to help personal injury victims or those whose access to justice has been compromised, please let us know.
The good lawyer is not the man who has an eye to every side and angle of contingency and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape.
Ralph Waldo Emerson
(1) The world's tallest statue is the Spring Temple Buddha located in China.
(2) Julia Gillard was the first Australian Minister for Social Inclusion.
(3) There are 46 countries globally who receive more refugees than Australia does.
Nudiustertian - Pertaining to the day before yesterday.
The ACT government has announced plans to introduce a range of changes to motor and workplace compensation claims including a 15% WPI threshold for general damages. ACT members have established an information and discussion website to encourage debate and awareness of the proposed changes. ALA members nationwide are invited to take part in that discussion at the interactive website by clicking here.
Bailey & Bailey v Director-General, Department of Energy Climate Change and Water & 2 Ors [2010] NSWSC 979 (Studdert AJ)
In Bailey, the defendants applied for the determination of all issues of liability separately from and before the quantification of damages. Studdert AJ reviewed the authorities, noting that separate determination of an issue is to be regarded as an exceptional course and concluded that a trial limited to liability would not be appropriate in circumstances where there was an overlap between damages and liability evidence.
The ALA would like to thank Simon Morrison SC for this contribution.
As of 1 February 2011, the processing fee for subpoenas will increase. Please refer to the new fees listed in the information sheet.
The Workers' Compensation Legislation Amendment Act 2010 will commence on 1 February 2011. Read the NSW Law Society's summary of the changes here. The Workers' Compensation Regulation 2010 also commences on 1 February and remakes, with minor amendments, the provisions of the Workers' Compensation Regulation 2003. View the new Regulation here.
Sapwell v Lusk [2010] QSC 344 (Atkinson J)
In Sapwell, the plaintiff worked alone in an optometry shop in a back room, from which she had no adequate view of the shop and where there was no means of preventing customers from entering the back room. She was sexual assaulted by a customer. The plaintiff succeeded in establishing a breach of the non-delegable duty of care on the part of the employer, NSW v Lepore (2003) 212 CLR 511. The fact that she was particularly vulnerable as a result of a history of child sexual abuse and suffered severe post-traumatic stress disorder, depression and anxiety following the assault did not prevent the injury being foreseeable or break the chain of causation.
The ALA would like to thank Simon Morrison SC for this contribution.
Marshall v Girard & Ors [2010] QSC 454
In Marshall, the plaintiff, now 50 years old., was involved in a motor vehicle accident in 2006. He was working successfully as a painter, despite having pre-existing injuries. His dominant injury in the accident was a chronic adjustment disorder with a PIRS rating of 17%. He also suffered a fractured hand, bilateral knee injuries and a right shoulder injury. Lyons J assessed an ISV of 36 and awarded him $58,400 in general damages, among other heads.
The ALA would like to thank David Kidd of Kidd's Law Publications (Kidd LRS Pty Ltd) for this contribution.
Each year, the ALA presents a Civil Justice Award to a deserving recipient in accordance with certain criteria. The Committee is now calling for nominations to be made for worthy recipients by close of business 4 February 2011. Please review the criteria and forward your nominations to the committee, care of our Secretary Ashley Park, by email to apark@carewlawyers.com.au.
Last v Workcover Corporation [2010] SASC 338
During his employment with Australian Fishing Enterprises Pty Ltd (AFE), Wayne Last sustained an injury in respect of which he received weekly income maintenance. Since AFE was unable to provide Mr Last with suitable work within his medical restrictions, he commenced a Rehabilitation and Return to Work Plan doing unpaid work for the RSPCA. Last suffered further injury while working at the RSPCA and lodged another workers' compensation claim for which he received medical expenses only.
The Full Bench of the Workers' Compensation Tribunal confirmed that he was not entitled to income maintenance for his second injury as it was not sustained while in ‘relevant employment' as required by the Workers' Rehabilitation and Compensation Act 1986 (SA) (the Act). On appeal, Mr Last contended that the Tribunal failed to consider s30 of the Act, which provides that a worker's employment includes attendance at a place for the purposes of a rehabilitation and return-to-work plan.
Justice Gray allowed the appeal on the basis that Mr Last's unpaid work at the RSPCA was ‘relevant employment' under s30 of the Act, and that he was therefore entitled to income maintenance with respect to the second injury.
The ALA would like to thank Shalu Verma for this contribution.
Tusyn v State of Tasmania (No 3) [2010] TASSC 55
Walter Tusyn was sexually abused by his foster father, Jack Long, in 1961. Mr Long had been charged with indecently assaulting a boy in 1945. In 2003, Mr Tusyn sued the state of Tasmania for damages on the ground that the officers of the Tasmanian Social Services Department were negligent in permitting Mr Long to be entrusted with him without checking his suitability.
While the state contended that the claim was statute=-barred, Mr Tusyn argued that he had no information as to the departmental officers' negligence until 2002. In 2009, his solicitors applied for an extension of the limitation period by three years from the commencement of s38A(3) of the Limitation Act 1974 in 2005. Following the death of Mr Tusyn, his widow decided to proceed with the claim.
The Tasmanian Supreme Court was satisfied that the limitation period should be extended because there was no evidence that Mr Tusyn knew, or ought to have known, of any information suggesting negligence before 2002; a fair trial was still possible, due to the availability of documentary evidence and Mrs Tusyn as a witness; and Mr Tusyn had a substantial and reasonably arguable case.
The ALA would like to thank Shalu Verma for this contribution.
Li v Toyota Motor Corporation Australia Ltd [2010] VSC 458 (14 October 2010)
The Victorian Supreme Court has upheld a workplace injury claim, finding the employer to be negligent and in breach of the Occupational Health and Safety (Manual Handling) Regulations 1999. The plaintiff was employed on a production line, and was required to lift and inspect heavy car components. He had been employed in this role for 27 years, and worked six or seven days a week. The plaintiff injured his knee, requiring surgery and becoming unable to return to work. He sued to recover damages for pecuniary loss, and pain and suffering.
During its own assessment, the employer had found the production line to be a high-risk workplace, and as a response recommended that employees should regularly rotate between lifting and inspecting rules. However, the plaintiff spent around 80% of his shift lifting, as these rotations were left up to the employees to organise among themselves. The court found that by failing to enforce the rotations, the employer had breached its duty of care, and was liable for negligence, but that the plaintiff had contributed by failing to request their enforcement. Thus, ultimately the plaintiff was awarded pecuniary loss and pain and suffering damages, reduced by 25% for contributory negligence.
The ALA would like to thank Shane Dawson for this contribution.
Burns v Pearce [2010] WASCA 214
Robert Burns was driving 400 metres behind Kristy Pearce's vehicle when she collided with a cow. Burns failed to sufficiently slow down and subsequently also collided with the cow and hit a pole, as a result of which he was injured. Burns instituted proceedings against Pearce on the ground that she had been negligent in colliding with the cow and in failing to turn on her hazard lights immediately after coming to a stop. These claims were dismissed and Burns was found to have been contributorily negligent.
On appeal, the Western Australian Supreme Court was satisfied that the trial judge erred in finding that Pearce's collision did not materially contribute to the events causing Burns' injuries and that the latter's failure to slow down enough broke the causal chain. However, the Court also held that Pearce had not been negligent, as her collision could not have been avoided by the exercise of reasonable care, and because failure to turn on the hazard lights immediately was understandable in the circumstances and would not have made any material difference to Burns' course of action. The appeal was dismissed.
The ALA would like to thank Shalu Verma for this contribution.
Matthews v The Queen [2010] QDC 412
The applicant submits that his indictment regarding unlawfully attempting to strike a police officer with a motor vehicle is bad at law, and that the prosecution evidence taken at its highest is insufficient to sustain a conviction. The applicant submits that the word ‘strike' under s317 Criminal Code involves a direct application of force to the victim, and he did nothing but attempt to strike.
His Honour found that normally a s317 conviction would be supported. However, in this case the application of force or striking of the police officer by the vehicle driven by the applicant was indirect, and the applicant cannot be found guilty. Therefore, the indictment should be struck out.
The ALA would like to thank Roopa Varadharajan for this contribution.
The Australian Institute of Criminology (AIC) has released the following publication: Community Policing in Australia (Research and Public Policy Series and no 111, January 2011). The report provides an overview of what is currently known about community policing in Australia. Topics covered include:
· Community Policing - the Australian connection;
· The changing nature of communities: Implications for police and community policing;
· A new movement in community policing? From community policing to vulnerable people policing;
· Community policing in culturally and linguistically diverse communities;
· Community policing in rural and remote Australia;
· Aboriginal liaison officers in community policing;
· Indigenous community policing: Building strength from within;
· Police and crime prevention: Partnering with the community; and
· Harnessing information and communications technologies in community policing
Community policing occurs across many contexts and continues to be part of everyday policing practice, but it is especially challenging when the community is resistant or hostile and/or there is a personal or collective history of poor relations. The skills and knowledge required to undertake community policing successfully should be the subject of ongoing investigation and debate and greater celebration.
The publication is now available on the AIC's website here.
The annual Australian Lawyers Alliance NSW state conference will be held on 18-19 March 2011 at the Crown Plaza Terrigal on the NSW Central Coast.
The conference provides an excellent opportunity for practitioners to keep up to date with the latest developments in personal injuries law and to network and socialise in a relaxed environment. This event attracts more than 150 attendees.
The conference is also an excellent educational opportunity and attracts up to 8 CLE points and covers the mandatory units, including:
- Ethics and Professional Responsibility compulsory CLE unit
- Practice Management & Business Skills compulsory CLE unit
- Professional Skills compulsory CLE unit
Click here for further details and to register online for this event. Thank you to our Major Partner, Perpetual and event partners, Ask Funding, Evidex, ipac and LawMaster.
Tuesday 8 February 2011, Hobart
Join your local branch for this not-to-be-missed, informative seminar.
The topic for discussion is: Cases You Need To Know To Run A Personal Injury Case in Tasmania, presented by Ken Read, barrister, Malthouse Chambers.
Click here for further details and to register online.
Do not miss out on this opportunity to join the NSW branch for an informative intensive seminar scheduled for Thursday 10 February 2011 in Newcastle.
The topics for discussion include:
- Recent Developments within CARS: Comments and Tips on Preparation for CARS Assessment Hearing, presented by Peter Harvey, Partner, TL Lawyers and CARS Assessor
- Contributory Negligence in Motor Vehicle Accident Cases: Alcohol and Seatbelts, presented by Jann Gardner, Partner, Sparke Helmore Lawyers
- Medical Negligence Update: A Doctor's Failure to Follow Up, presented by Anna Walsh, Principal, Maurice Blackburn Lawyers
- The World of Asbestos Litigation: A NSW Perspective, presented by Theodora Ahilas, Principal, Maurice Blackburn Lawyers
Click here for further information and to register online. Thank you to our seminar sponsors: Evidex and Sinergy.
Attend this seminar and claim 4 CPD points.
Please note: If you are a student member of the Australian Lawyers Alliance, you can attend this seminar for free. For further information or to express interest for this seminar, please email: seminars@lawyersalliance.com.au.
Wednesday 23 February 2011, Perth
Get this date in your diary and join your local branch for this not-to-be-missed seminar in Perth on ethics.
The topic for discussion is: The New Professional Conduct Rules: What Every Personal Injury and Criminal Lawyer Must Know, presented by Grant Donaldson SC, barrister, Francis Burt Chambers.
To register for this event, click here
This seminar is followed by evening drinks; thank you to our sponsor, Angove Family Winemakers. Thank you to our seminar sponsor, Perpetual.
Attend this seminar and claim 1.5 CPD points in Ethics.
If you are a student member of the Australian Lawyers Alliance, you can attend this seminar for free. Please email or expressions of interest and queries regarding this matter to: seminars@lawyersalliance.com.au.
Put these confirmed dates in your diary:
QLD Conference, 18-19 February 2011, Sheraton Mirage Resort & Spa Gold Coast
NSW Conference, 18-19 March 2011, Crowne Plaza Hotel Terrigal
VIC Conference, 13-14 May 2011, Peppers The Sands Resort Torquay
ACT Conference, 24 June 2011, Hyatt Hotel Canberra
Medical Law Conference, 22 July 2011, Amora Jamison Hotel Sydney
WA Conference, 19 August 2011, The Esplanade Hotel Fremantle
National Conference, 20-22 October 2011, Hamilton Island
Keep an eye on our website for updates - www.lawyersalliance.com.au/events
Were you unable to attend a Lawyers Alliance event? Don't worry, you haven't missed out. Papers from all ALA conferences and most seminars are available for purchase.
Some state and territory CLE/CPD schemes offer points for the reading of papers and can therefore add to your CLE/CPD credits.
Click here to download the paper order forms from Lawyers Alliance events going back to 2004.
Tuesday 8 March 2011
Vibe Savoy Hotel, Melbourne
Topic: Impairment assessments in accordance with the AMA 4th Edition Guide.
Further details to follow - get this date in your diary!
Wednesday 23 February 2011, Perth
Get this date in your diary and join your local branch for this not-to-be-missed seminar in Perth on ethics.
The topic for discussion is: The New Professional Conduct Rules: What Every Personal Injury and Criminal Lawyer Must Know, presented by Grant Donaldson SC, barrister, Francis Burt Chambers.
To register for this event, click here
This seminar is followed by evening drinks; thank you to our sponsor, Angove Family Winemakers. Thank you to our seminar sponsor, Perpetual.
Attend this seminar and claim 1.5 CPD points in Ethics.
If you are a student member of the Australian Lawyers Alliance, you can attend this seminar for free. Please email or expressions of interest and queries regarding this matter to: seminars@lawyersalliance.com.au.