Wong on Civil Liability

Select topics on Civil Liability in Australia

Work-in-progress, 29 November 2024

General Damages: Mesothelioma

Veterinary Negligence

Consumer Protection: Breeders of Animals and Purchasers

Consumer Protection: Pet Goods and Services (Non-Veterinary)

Occupiers' Liability

Golfers' Liability (including Golf Course Design Standards/Guidelines)

Medical Negligence 

Financial Advisors/Planners

Builders, Construction & Engineering

Domestic Violence / Abuse

Evaluation of Permanent Impairment

[A] Tort Law - Common Law

[A1] Effective Delegation of Duty of Care - Landlord/Property Manager - Negligence - Scope of Duty - Building Maintenance: see Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196; Yeung v Santosa Realty Co Pty Ltd [2020] VSCA 7, [80].

[A1.1] Discharge by delegation - Duty of Care to Third Parties - Occupier - engagement of competent tradesman: Harris v Briggs (1994) Aust Torts Repp 81-301; Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, [53] (Hodgson JA, with Giles AJA and Nicholas J agreeing). 

[A2] Economic Loss - Duty of Care: 

[A2.1] Statement of Principles: succinctly set out in Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17, [133]. Key point of vulnerability: Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2021] QSC 74, [316]-[327]; San Sebastian Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340, 355.

[A2.2] General Principles - Builder/Registered Proprietor (incl. sucessors-in-title): see Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; Bryan v Maloney (1995) 182 CLR 609; Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5, [196] (Kirk JA and Griffiths AJA); Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA 35, [398]-[391].

[A2.3] Architect/visitor to building: Voli v Inglewood Shire Council (1963) 110 CLR 74.

[A2.4] Principal Contractor/Sub-subcontractor: Courts have recognised the difficulty in identifying the relevant principles applicable (maybe because of the remoteness or lack of proximity in the web of relationships): see TNT Australia Pty Ltd v CMW Design & Constructions Pty Ltd [2003] VSC 339, [25]; Line of authorities in Australia recognising such a duty of care in this type of relationship appear to have been premised on the House of Lord's proposition in Junior Books v Veitchi Co Ltd [1983] 1 AC 520 (House of Lords) that "a common law duty of care may be created by a relationship proximity that would not have arisen but for a contract": see Brown v Brown (Federal Court of Australia, VG 797 of 1995, unreported); BC9600876 at 9-10 (Ryan, Heerey and Sackville JJ); Since Perre v Apand (1999) 198 CLR 180 the concept of "proximity" replaced with "vulnerability", but this appears not to be settled: see Valleyfield Pty Ltd v Primac Ltd [2002] QSC 80, [66]. Case law in Australia have recognised the duty of care in this type of relationships (or similarly equivalent situations): Eg, Latrobe Valley Village Inc v CSR Ltd and Monier Lid (Supreme Court of Victoria, 26 June 1990, J H Phillips J); TNT Australia Pty Ltd v CMW Design & Constructions Pty Ltd [2003] VSC 339, [19]; Though, no "cut and dried" answer as to whether duty of care arises in every relationship within this category - depends on the identity and position of the parties: see especially, Gunston v Lawley [2008] VSC 97, [27]-[28]; Rail Corporation of New South Wales v Fluor Australia Pty Ltd [2008] NSWSC 1348, [34]. Vulnerability to losses caused by the defendant's conduct as well as reliance on skill, experience and expertise, are some key factors: see Gunston v Lawley [2008] VSC 97, [32]-[34]; TNT Australia Pty Ltd v CMW Design & Constructions Pty Ltd [2003] VSC 339, [25] ("the contention that the reasonable foreseeability of loss by the negligence of a mere supplier of labour for the purpose of concreting ... withot more, give rise to a duty of care owed to such proprietor by the party supplying that labour to a contractor or subcontractor is dubious, but cannot be said to be utterly hopeless"); . Cases that set out the some of the relevant factors and criteria for establishing the duty of care (non exhaustive): Valleyfield Pty Ltd v Primac Ltd [2002] QSC 80, [66] (Cullinane J); Gunston v Lawley [2008] VSC 97, [27]-[34]; Rail Corporation of New South Wales v Fluor Australia Pty Ltd [2008] NSWSC 1348, [34]; Junior Books v Veitchi Co Ltd [1983] 1 AC 520 (see list of factors set out in Lord Roskill's opinion).

[A2.5] Defective Design - negligently advised, designed and supervised the foundations of a building which subsequently showed signs of damage: Query, National Mutual Life Association of Australasia Limited v Coffey & Partners Pty Ltd (QSC, 3 October 1989, No 767 of 1983, unreported); [1991] 2 Qd R 401. Patrick Mead, 'Defective Structures and the Construction Financier's Remedy in Tort' (1996) (46) Australian Construction Law Newsletter 20; Sutherland Shire Council v Heyman (1985) 157 CLR 424 (coment on Lord Wilberforce's classification). See also, Proprietors Units Plan & Ors v Jiniess Pty Ltd & Ors [2000] NTSC 89, [50] et seq <https://supremecourt.nt.gov.au/__data/assets/pdf_file/0009/763515/2000NTSC89-Proprietors-Units-Plan-No-95-38-and-Ors-v-Jiniess-Pty-Ltd-and-Ors-31-Oct-2000.pdf>.  

[A3] Apportionment - Indivisible Illness - comparative culpability/departure from standard of care - 50/50 apportionment?: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529, 532-3; PHR Pty Ltd v Bradford Insulation (SA) Pty Ltd [2017] SADC 80; E M Baldwin & Son Pty Ltd v Plane (1999) Aust Tort Rep 81-499 (NSWCA); Rolls Royce Industrial Power v James Hardie [2001] NSWCA 461; In (Re: Lawrence) BHP Biliton Ltd v Amaca Pty Ltd [2003] NSWDDT 18; Hart v Amaca Pty Ltd [2004] NSWDDT 10.

[A4] Duty of Care - Wine Bottle Cork: O'Dwyer v Leo Buring [1966] WAR 67. 

[A5] Duty of Care - unborn child in utero - en ventre sa mere: see here.

[A6] Duty of Care - Education Authority - School - Teachers:

[A6.1] Duty of Care - School - Teachers: see Commonwealth of Australia v Introvigne (1981-1982) 150 CLR 258.

[A6.1.1] NDD in contexts of recreational activities conducted by external contractors: Cook v Riding for the Disabled Association (NSW) & Anor [2024] NSWSC 1332: 

[A6.2] School - Outside School, Outside Ordinary School Hours, but under the School's care (eg, school camps, excursions, etc) - Duty of Care established: see Gugiatti v Servite College Council Inc. [2004] WASCA 5, [19] (Steytler JA with whom Miller and Wallwork JA agreed); Gugiatti v Servite College Council Inc. [2003] WADC 30.

[A6.3] School - Outside School, Outside Ordinary School Hours, but not under school's care - query whether Duty of Care established: Lepore v NSW [2001] NSWCA 112, (Mason P), [37]; Geyer v Downs (1977) 138 CLR 91; Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Tort Rep ¶81-399, 63,589 (Mahony P); Munro v Anglican Church of Australia, Diocese of Bathurst, unreported; Ct of App (NSW); Library No 490/85; 14 May 1987, BC8701369 at 22 (McHugh JA).

[A6.4] Teacher's Duty of Care - Standard of Care :"The duty of care owed by' [the teacher] 'required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to' [the pupil]. 'This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi' [the teacher] 'should reasonably have foreseen": Gugiatti (WASCA), Steytler JA at [12] citing Geyer v Downs (1977) 138 CLR 91; Hanna v Uniting Church in Australia Property Trust (NSW) [2010] NSWSC 293.

[A6.5] Scope of duty and standard of care - the scope and standard of care, depends on what is required to be done in the circumstances: Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Rep ¶81-399,  63, 589 (Mahony P).

[A6.6] Standard of Care - Adequate Supervision: What constitutes adequate supervision or not depends on all the circumstances: H v Pennell and the State of South Australia (1987) 46 SASR 158; This includes age, gender, known nature and conduct of specific students and their propensities for inappropriate behaviour and general activity patterns within the school population: Sidhoum v Minister for Education [2022] WADC 35, [229]-[240]; The Courts have held that it is not reasonable to have a system in which children are observed during particular activities for every single moment of time albeit this was in the context of an injury sustained on a flying fox in a playground, rather than a classroom (i.e. they were engaging in authorised or approved activities that had a risk of harm attached): Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulbourn v Hadba [2005] HCA 31, [25] (Hayne, Callinan and Heydon JJ). See also, Hanna v Uniting Church In Australia Property Trust (NSW) [2010] NSWSC 293; Flavel v State of South Australia [2008] SASC 333; Flaval v State of South Australia [2007] SASC 50; Munro v Anglican Church of Australia, Diocese of Bathurst, unreported, Ct of App (NSW); Library No 490/85; 14 May 1987 BC8701369 (no supervision of camp activity – see McHugh JA) at 16: "The breach of the duty in the circumstances of the present case was the permitting by the school through its teacher, Mr Tucker, of the plaintiff and other pupils to manoeuvre the trailer with its contents down a steep, damp, grassy embankment. I have taken those words from one of the ways in which the breach of duty was expressed in the written submissions for the appellant which were before us.”

[A6.7] Foreseeability of Harm: H v Pennell and State of South Australia, quoted in Crooks v Fitzgerald [2002] QCA 307, [18].

[A6.8] School - Scope and Content of Duty of Care - Standard of Care - School Sports - Games: The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308, [60]-[61] (Ipp AJA): "60 Risks of serious injury while playing games of the kind to which I have referred, while real and not far-fetched, are remote. They can be reduced further by training and supervision, and catering for the needs of the individual child. Because the risks are unlikely to materialise when the games are properly controlled, merely to allow children to participate in them will not, in the absence of special circumstances, be regarded as negligent: see for example Kretschmar v The State of Queensland (1989) Aust Torts Reports 80-272. 61 Thus, where an injury is caused by an unfortunate concurrence of circumstances that reasonable precautions could not have prevented, no breach of duty will have occurred. See, for example, Kady v The Trustees of the Roman Catholic Church unreported, NSWCCA, 19 February 1997, where a boy fell and broke his arm while taking part in a high jump event; Nobrega v The Trustees of the Roman Catholic Church unreported, NSWCCA, 23 March 1999, where a student was injured while taking part in or using a water slide; Cooke v Kent County Council (1949) 82 Lloyds L R 823, where a boy fell and broke his arm while playing a supervised game of “jockeys and horses”; Wright v Cheshire County Council (1952) 2 All ER 789, where a boy fell and was injured while performing gymnastics; Kretschmar v The State of Queensland, where a child sustained brain injury while playing a game of “rob the nest”."; Mattock v State of New South Wales (New South Wales Department of Education) (No 2) [2021] NSWSC 1045, [227] (Harrison AsJ); Sanchez-Sidiropoulos v Canavan [2015] NSWSC 1139, [91] (Schmidt J) (aff'd on appeal).

[A6.8] Liability of the State - School Authority as Emanation of the Crown in Right of the State: State of New South Wales v Kennelly [2001] NSWCA 71, [3], [35]; Seiffert v Prisoners Review Board [2023] WASCA 15, [237]. 

[A7] Duty of Care - delay in medical treatment: see here.

[A9] Court may have regard to precedent in assessing general damages: In determining damages for non-pecuniary loss, or general damages for pain and suffering and loss of amenities, the court may refer to earlier decisions of the court, or other courts, for the purpose of establishing an appropriate award: Civil Liability Act 2002 (WA) s 10A. 

[A10] Duty of Care - to the public at large - to a bystander - victim to actions of the police in pursuit of entirely unrelated persons and events - reckless and out of proportion to the danger possibly threatened: Cullen v State of New South Wales [2023] NSWSC 653, [6], [107], [114], [129], [133], [141] (Elkaim J).

[A11] Peer Professional Opinion - Consent to Medical Treatment - Consent to Procedure - Consent to emergency treatment in the course of therapy - continuing vaginal delivery without reference to patient - instrumental delivery - a situation where a surgeon needs to make an immediate decision about the particular technique to use in the midst of therapy or treatment - context of birth claims: See, Sheppard v Swan [2004] WASCA 215, [68] (McLure J), [113]-114] (EM Heenan J); and here.  

[A12] Negligence - Restaurant - Spilling soup on Patrons: 

[A12.1] Plaintiff's chair protruded out further from the table than that of her neighbours - waiter tripped and spilled soup down her back - damage to dress - held "incident arose from an inadvertence falling short of a breach of duty to show care. But that conclusion must not be regarded as a licence to restaurant proprietors to allow their waiters to trip up and tip soup down the necks of their guests" (Evershed MR): Foster v Bush House Ltd [1952] 96 Solicitors Journal 763 (Evershed MR, Romer LJ and Harman J). (cited in Randall v Tarrant [1955] 1 All ER 600).

[A12.2] Scald (Child) - An infant aged 8 suffered scalding to her face, neck and shoulder when two waitresses in a restaurant collided resulting in one of them spilling hot soup over the infant - second degree burns on forehead, cheek and shoulder, arm and back, affecting 3% of total surface area of body - scarring, pigmentation would remain - mild degree of emotional and psychological difficulty - action not defended: Leung Pui Yiu (by her father and next friend Leung Chi Ming) v Wong Yin Kuen and Others (HCPI 453 of 2001, Seagrott J, 19 May 2001, Hong Kong SAR Court of First Instance).

[A12.3] See also, in other contexts, Nursery and infants scalding on hot soup: Jones v Jones, 119 Ga. App 78, 168 S.E.2d 883 (1969); Bonnett, etc v Slaughter, 422 So.2d 499 (La. App. 1982).

[A13] Occupiers' Liability: See here. 

[A14] General Damages - s 10A Civil Liability Act 2002 (WA) - Mesothelioma: comparative table: see here. See also,  Kennedy v CIMIC Group Ltd and CPB Contractors Pty Ltd [2020] NSWDDT 7, [162]-[163] (Scotting J).

[A15] Veterinary Negligence: see here. 

[A16] Restitutio ad Intregrum: see Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211, [484[ (Hely J); Hyder Consdulting (Australia) P/L v Wilh Wilhelmsen Agency P/L & Anor [2001] NSWCA 313, [29], [33], [40] (Meagher JA with whom Sheller JA agreed); Von Stanke v Northumberland Bay Pty Ltd [2008] SADC 61, [130] (Lovell J). 

[A16.1] Recovery for injury already subject to previously settlement agreement (eg, worsening of the injury) - query whether condition was an “aspect of and incorporated part of the injury”, or completely new injury: Parker v Ford [2000] SAWCT 163. The decision touches on the issue of what part of a claim is redeemed where a worker suffers a physical and psychiatric disability. In Parker the worker suffered a right knee disability and also had treatment for a psychiatric condition related to the knee disability. The knee injury was the subject of a redemption agreement which did not make reference to any psychiatric condition. It was held on the facts that the psychiatric condition was an “aspect of and incorporated part of the injury” to the knee and had thereby been redeemed. This case suggests that some care should be taken so as to include all matters the subject of the claim where redemption agreements are reached.

> "35. The decision maker had come to the conclusion on the evidence that there was no new injury and no fresh cause of action. The psychological or psychiatric claim was an aspect of and an incorporated part of the injury that had occurred on 9 July 1991. On the basis of the medical evidence that was rightly so.":  Parker v Adrian Brien Ford [2000] SAWCT 163, <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SAWCT/2000/163.html>, archived at <https://archive.is/brVVs>. 

[A17] Betterment: see Hyder Consdulting (Australia) P/L v Wilh Wilhelmsen Agency P/L & Anor [2001] NSWCA 313, [29], [33] (Meagher JA with whom Sheller JA agreed); see how this principle is applied: Von Stanke v Northumberland Bay Pty Ltd [2008] SADC 61, [130] (Lovell J).

[A18] Financial Advisors: DOC: ABN Amro Bank NV v Bathurst Regional Council [2014] FCAFC 65, [1101], [1109], [1111]. Scope: Defrancesca v Ruby Loans Pty Ltd [2020] SADC 106, [773]; Carmody v Priestley [2005] WASC 120, [95], [98]; Tax (Financial) Advice: Galea v Camilleri; The Estate of Patricia Camilleri [2023] NSWSC 206, [856]. "financial product advice": ASIC RG 36.7, 36.9, 36.19, 36.41, 36.43-47, 175.24; Corporations Act 2001 (Cth) s 766C(2); ASIC v Secure Investments Pty Ltd (No 2) [2020] FCA 1463, [41]; Quantum Group Holding Pty Ltd v Thomson [2021] FedCFamC2G 339, [62]; Duty to advice/inform/warn (even incidentally): NMFM Property Pty Ltd v Citibank Ltd [2000] FCA 1558, [803]; Defrancesca v Ruby Loans Pty Ltd [2020] SADC 106, [792]; Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) [2012] FCA 1028, [794]-[790]; Aequitas v AEFC [2001] NSWSC 14, [21], [281]-[288]; Carmody v Priestley [2005] WASC 120, [104]-[119];  HAP2 Pty Ltd v Bankier [2020] QCA 152, [63]-[81]; Adam v Perpetual Trustees Australia Ltd [2006] SADC 62, [186]-[212]; Ali v Poynton Ltd [2002] VSC 113, [266]-[270]; Astley v Austrust Ltd (1999) 197 CLR 1, [30], [35]. See Financial Planners. 

[A19] Reduced Capacity for Work - Future Economic Loss: see:  

[A20] "Egg Shell Skull" Principle in Tort law:  

> Ekpe v Darling & SGIC [2000] SADC 50;

> Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160; 

> Darlaston v Risetop Construction Pty Ltd [2011] FMCA 220;

> **Victorian WorkCover Authority v Direxa Engineering Australia Pty Ltd (No 1) [2013] VCC 1039, [147]-[150]: "150. From my own experience, the obtaining of permanent resident visas is a complex process. I have not had the benefit of any expert evidence on the point. While I accept that the summary dismissal from his locksmith course is likely to have had an impact on Mr Davey’s capacity to remain permanently in Australia, I am not satisfied on the basis of the evidence, that other prospects that he might have, including to continue the course when he returns to Australia, undertake a course as a locksmith with another institution or find some other area of work in an appropriate category is not available to him. I am satisfied that the injury has had some affect upon his capacity to remain in Australia but has not excluded that possibility completely. I accept that to some extent, that loss sounds in damages, but not to a significant degree."

> Donoghue v Hussain [2013] WADC 18;

> Gulab Khan v Matthew Rathjen [2016] NSWDC 139, [304]: "However, I accept the plaintiff’s submission that he was entitled to seek work as a systems analyst or similar information technology role whilst residing in Australia on VC 485 visa until June 2013, and if he was able to obtain work within the information technology industry, while on the VC 486 visa, he could have then applied for another type of visa to reside in Australia. These were lost opportunities for which he is entitled to be compensated.". 

> Min v Huang & Ors [2016] QDC 116;

     -- see also, 'Student visa crash victim wins permanent residency income loss' (Carter Carpenter Law, 30 May 2016) <https://cartercapner.com.au/blog/student-visa-crash-victim-wins-income-lost-likely-permanent-residence/>, archived at <https://archive.is/ihDAw>.   

> Vo v Tran [2016] NSWSC 1043, [227]; not disturbed on appeal: Tran v Vo [2017] NSWCA 134;

> Soogyung Kim v Xiaoxia Liu & Allianz [2017] QDC 167;

> Antonios Abou Antoun v Sleiman Chidiac [2017] NSWDC 208;

> Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019] FWC 1687; 

> Xian Qian v RACQ Insurance Limited [2019] NSWDC 57;

> Mathews v Schuler [2019] NSWDC 203;

> Smith v Moraitis Administration Pty Limited [2021] NSWPIC 268; 

> Dhakal v QBE Insurance (Australia) Limited [2021] NSWPIC 296;

> Hejazin v Medical Council of New South Wales [2021] NSWCATOD 185;

> Shahid v Alpha Trading Engineering Pty Ltd [2021] VSC 551;

> Ittyerah v Infosys Technologies Pty Ltd [2022] NSWSC 1048;

> Yoo v AAI Limited t/as GIO [2022] NSWPIC 671;

> Fair Work Ombudsman v House of Hoi An Pty Ltd [2022] FedCFamC2G 133;

> **Pan v CIC Allianz Insurance Limited [2023] NSWPIC 266;

> Insurance Australia Limited t/as NRMA v Hussain [2023] NSWPIC 383;

> Bao v Haynes & Anor [2023] NSWDC 364;

> Nadeem v Bindaree Food Group Pty Ltd [2023] NSWCA 250;

> Damdinbazar v Allianz Australia Insurance Limited [2023] NSWPIC 402;

> Lin v Max Bean Pty Ltd [2023] FedCFamC2G 1127;

> Rasheduzzaman v Richmond 404 Pty Ltd trading as Smokin’ Joe’s Pizza & Grill [2023] FedCFamC2G 38;

> SYTP Block OpeC19td v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 258;

> Fair Work Ombudsman v Melbourne Digital Pty Ltd [2024] FedCFamC2G 342, [74]; 

> Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483; 

> Javed v Allianz Australia Insurance Limited [2024] NSWPIC 163.

> Toppo v P & J Harris & Sons (A Partnership) [2024] FCA 257, [10].

> Fair Work Ombudsman v Watch Trader Pty Ltd [2024] FedCFamC2G 162. [84].

> Rajput v TAC [2024] VCC 304: "215. As part of the consequences of his transport injury the plaintiff suffers a pecuniary disadvantage and because of the severe disorder he has I consider he would be precluded from work even if he was permitted to do so under American law but also if he was resident in Australia."

[A21] Elevator/Travellator/Escalators: 

[A21.1] Entrapment, malfunction, negligence, DOC to repair and maintain lift: Massouras v Kone Elevators Ptd Ltd [2020] ACTSC 66; Winford v Permanent Nominees (Aust) Ltd ACN: 000 154 441 & Ors [2002] ACTSC 21.

[A21.1.1] Tripping on exiting lift - failed to level accurately at the floor: Schneider v AMP Capital Investors Ltd [2016] NSWSC 333; Winford v Permanent Nominees (Aust) Ltd ACN: 000 154 441 & Ors [2002] ACTSC 21; Wilson v Emanuel Group of Companies & Otis Elevator Company Pty Ltd (SASC, Unreported, No 2701 of 1998, Legoe J) BC9100397; Emanuel Group of Companies v Wilson (SASC, Unreported, No 2701 oof 1988, King CJ, Bollen and Prior JJ) BC9200482.

[A21.1.1.1] Lift door closing on person: City Elevator Services Pty Limited v Burrows [2004] NSWCA 26.

[A21.1.1.2] Lift collapsed, lift found to be unsafe for carriage of people: Hillcoat v Keymon Pty Ltd & Anor [2002] QCA 527.

[A21.1.1.3] Lift ceiling falling: Valeondis v Permanent Trustee Aust Ltd [22008] SADC 143.

[A21.1.1.4] Lift allegedly moan and jolt and then jerk; fall - claim not made out: Dimitrelos v 14 Martin Place Pty Limited and 3 Ors [2007] NSWCA 85.

[A21.1.1.5] Slip on travellator while walking down when wet - foreseeability of risk - breach - obvious risk rejected - contributory negligence rejected turns on facts: Akgun v Stockland Property Management Pty Ltd and Anor [2024] NSWDC 253 (Newlinds SC DCJ): " ... [45]  By the conclusion of submissions, I think it is fair to say that it was common ground that the relevant risk of harm for the purpose of the CLA was the risk that people, when walking upon the travelators when wet, would slip and fall and suffer injury. ... [49]  I do not think either point is right for the following reasons. Firstly, the relevant risk which I consider was foreseeable was in my opinion not insignificant. It is not to the point that of the ten or eleven million people who come to The Mall each year, only about five reported to the centre an incident of slipping on liquid on a travelator. That might be said to be an insignificant risk in the context of five people out of eleven million, but to each individual who slips the risk is not insignificant in the sense that, once they fall, there is a very high degree of at least possibility that they will be injured. [50]  It is only the reported instances of slipping and falling which occurred that can be counted, so these figures obviously understate things significantly. As reported, there were still five slips and falls in a period of slightly more than a year. That is a slip and fall on a travelator when wet approximately every two months. If there is only a 50% reporting rate, then that would equate to a slip and fall on a wet travelator at a rate of about once a month. By reference to s 5B(2)(a), it seems to me that there is not just a probability that harm would occur if the alleged care was not taken, it actually becomes a certainty. As far as s 5B(2)(b) is concerned, there is a reasonable likelihood of serious injury being caused and the burden of taking the precautions was a cost to a very large organisation running an enormous shopping mall of at most $250,000. The social utility of shopping malls (s 5B(2)(d)) would not in any way be impacted by the suggested precautions, as the shopping mall could continue to exist and function and, on the Plaintiff’s case, would be a safer place for everyone and the convenience, if it be a social utility, of pedestrians being mechanically assisted when walking can be retained. [51]  The question of liability really boils down to a consideration of s 5B(1)(c) of the CLA. [52]  As discussed during final submissions, this does involve me effectively second-guessing the decision that was taken by Stockland in 2022 when, having identified the very risk which is the subject of this case, and having identified a method of reducing that risk (the application of Chemrex), a decision was made to treat some, but not all, of the travelators. The travelator upon which the Plaintiff slipped and fell was one of the travelators left untreated. Stockland’s submission is that if that precaution was reasonable in 2022, then there would be no basis to conclude that anything more needed to be done prior to the accident. I do not accept this submission. [53]  Having considered the evidence of Dr Cooke and having listened to the evidence of Mr Farhat as to at least his thought process when making the decision to treat only some of the travelators, I am not satisfied that the precautions taken to reduce the identified risk were sufficient. To put it in the words of the statute, in my judgement in all the circumstances a reasonable person in Stockland’s position would have treated, if not all of the travelators, at least those which sloped down, which would have included the one upon which the Plaintiff slipped. It should have done that prior to the Plaintiff’s fall. [54]  Accordingly, in my judgement the identified duty of care owed by Stockland to the Plaintiff was breached. ... [57]  A useful summary regarding the approach to causation is contained in Gomez v Woolworths Group Pty Ltd [2024] NSWCA 121 at [65] –[69]. [58]  In my judgement, the probabilities are satisfied in this case. In the circumstances, Stockland’s failure to treat the travelators with Chemrex was a necessary condition for the occurrence of harm and that s 5D(1)(a) is made out. It was the breach of duty that probably caused or significantly contributed to the Plaintiff’s slip and fall. Dr Cooke said that in the absence of water being on the travelator, the travelator would have been safe from a slip perspective, but when wet it was dangerously slippery. There is no evidence that the Plaintiff had a propensity to fall or misstep. Further, the Plaintiff and his father gave evidence that he had used the travelator before without incident. The CCTV footage shows the Plaintiff walking normally and without hurrying when his feet suddenly go out from under him. I think it was the presence of liquid on the travelator that probably caused the Plaintiff to slip and fall. I have found it was a breach of duty to permit the surface of the travelator to be in the state it was when the Plaintiff suffered his injury, and that state was a necessary condition for the occurrence of harm within the meaning of s 5D(1)(a). [59]  Stockland pleads that the presence of water on the travelators was an obvious risk for the purpose of Part 1A Division Four of the CLA. [60]  A significant hurdle for Stockland in relation to this submission is that it is common ground and obvious that any clear liquid on the surface of the travelator would simply not be observable by a person taking reasonable care for their own safety. [61]  In other words, whilst it may be accepted it is an obvious risk that wet floors may be slippery, the particular risk in this case, being that travelators whilst safe when dry become dangerously slippery when wet, is to my mind not one that would have been obvious at all. Certainly, the requirement in s 5F(1), that such a risk has to be obvious to a reasonable person in the position of the Plaintiff is not made out. Moreover, the risk cannot have been that obvious to Stockland itself, who was familiar with the history of slips and falls, because there was no warning sign to the effect that travelators could become extremely slippery in circumstances where it might be very difficult to predict when and where that might happen. [62]  Stockland also pleads that the Plaintiff was guilty of contributory negligence. In essence the submission is that the Plaintiff ought to have been taken reasonable care for his own safety to prevent damage from the risk I have identified and that he breached that duty because he did not make use of the moving handrails when walking down the travelator. [63]  I do not think that failing to hold onto the moving handles is conduct which could satisfy the requirements of s 5R of the CLA. [64]  As was explained in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 : The question whether a person has been guilty of contributory negligence is determined objectively, the question being whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take… [65]  As a necessary element for any finding of contributory negligence, I must first find that the relevant risk of harm was foreseeable by the Plaintiff, that such risk was not insignificant, and in circumstances a reasonable person in the Plaintiff’s position would have taken precautions against the risk (s 5B(1)). The relevant risk of harm in this case is the risk of slipping on a wet travelator and falling causing injury. This is not a matter that was foreseeable by the Plaintiff in the circumstances as the Plaintiff was not on notice of that fact ie, that wet travelators are dangerously slippery, nor was he on notice that there was any water on the travelator. In all the circumstances it is not a risk that the Plaintiff knew or ought to have known of. Moreover, s 5B(1)(c) also requires a finding that a reasonable person in the Plaintiff’s position would have taken precautions against the risk of harm. Embedded in that proposition is an assumption that the Plaintiff, and the notional reasonable person, must have been aware of the very risk before he could be expected to take steps to avoid it. [66]  I have viewed 15 minutes worth of CCTV footage of many people using the relevant travelator before and after the Plaintiff’s fall. While some of them hold the handrail while standing stationary on the travelator, the vast majority of them do not do so and instead walk on the travelator, often carrying multiple shopping bags or pushing shopping trolleys or prams. Whilst the question for me is objective, I do not think it is irrelevant to observe that many of those people ought to be taken to have been ordinary reasonable people and hardly any of them are taking the precaution suggested by Stockland. ... [130]  As I have explained, whilst I am satisfied that there was some liquid on the travelator at the time of the fall, and that the cause of the Plaintiff’s injuries was that he slipped on that liquid, I have made and cannot make any finding as to how the liquid got there, for how long it had been there, and whether any actions by Assetlink as cleaner could have possibly identified its presence and cleaned it up prior to the Plaintiff’s fall. [131]  For that reason alone, Stockland’s cross-claim against Assetlink fails."

[A21.1.2] DOC to install and maintain escalator

[A21.1.2.1] Res ipsa loquitor rejected - elevators: Dimitrelos v 14 Martin Place Pty Limited and 3 Ors [2007] NSWCA 85; BCS Strata Management Pty Ltd T/as Body Corporate Services v Robinson and Anor [2004] NSWCA 80, [11].

[A21.1.3] Anti-slip treatment to travellators - reasonable precautions: " [39]  In 2022, after the risk assessment, Stockland decided, and Mr Farhat gave evidence before me that he was part of that decision-making process, to treat some, but not all, of the travelators with Chemrex or some related product. This took place in 2022, two years after the accident, however the Chemrex material was only applied to those travelators going down from level five (undoubtedly because it was identified that it was likely that water would come into the centre from the uncovered car parks on level five) and the travelator going down from level four, the food court, to level three, no doubt because it was identified that there was a risk of water or other liquids getting on the surface of the travelator by people spilling drinks and the like, having purchased them from the food court. [40]  The cost of application of the Chemrex-like material to each travelator was approximately $9,500. The evidence is that there was a total of twenty-six travelators in the Mall as of 2022. The total cost of the treatment of four of them in 2003 was approximately $50,000. If all the travelators sloping downward, which would have included the one the Plaintiff fell on, had been treated in the same way, that cost would have been about $250,000.... [52]  As discussed during final submissions, this does involve me effectively second-guessing the decision that was taken by Stockland in 2022 when, having identified the very risk which is the subject of this case, and having identified a method of reducing that risk (the application of Chemrex), a decision was made to treat some, but not all, of the travelators. The travelator upon which the Plaintiff slipped and fell was one of the travelators left untreated. Stockland’s submission is that if that precaution was reasonable in 2022, then there would be no basis to conclude that anything more needed to be done prior to the accident. I do not accept this submission. [53]  Having considered the evidence of Dr Cooke and having listened to the evidence of Mr Farhat as to at least his thought process when making the decision to treat only some of the travelators, I am not satisfied that the precautions taken to reduce the identified risk were sufficient. To put it in the words of the statute, in my judgement in all the circumstances a reasonable person in Stockland’s position would have treated, if not all of the travelators, at least those which sloped down, which would have included the one upon which the Plaintiff slipped. It should have done that prior to the Plaintiff’s fall. [54]  Accordingly, in my judgement the identified duty of care owed by Stockland to the Plaintiff was breached.": Akgun v Stockland Property Management Pty Ltd and Anor [2024] NSWDC 253.

[A21.1.4] Body Corporates, duty to keep lift in safe and proper working condition, servicing of lifts: Puflett v Proprietors of Strata Plan No 121 (1987) 17 NSWLR 372; BCS Strata Management Pty Ltd T/as Body Corporate Services v Robinson and Anor [2004] NSWCA 80.

[A21.1.5] Children

[A21.1.6] DOC system of inspection and maintenance, failure to ensure that the escalator proceeded at a speed that made it safe for a pedestrian to walk on: South Sydney Junior Rugby Leagues Club Ltd v Gioia & Ors [2000] NSWCA 249.

[A21.2] WHS: Franklin v Kone Elevators Pty Ltd [2011] VSC 108.

[A21.3] Australian Standards AS 1735, Lifts, Escalators, and Moving Walks: 

> Massouras v Kone Elevators Ptd Ltd; Pattinson v Kone Elevators Ptd Ltd; Shipton v Kone Elevators Ptd Ltd; Soesman v Kone Elevators Ptd Ltd [2020] ACTSC 66. 

> Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd [2017] NSWCA 40.

> VWA v Probuild & Ors [2016] VSC 102: "[8]  The VWA pleads that the incident causing Mr Griffin’s injury was caused by the acts, default and/or negligence of Probuild, Tubeway and/or Higgins. The particulars of negligence of the defendants are pleaded at paragraph 10 of the Further Amended Statement of Claim and are as follows: ... (bb) failing to comply with Australian Standards and/or WorkSafe Victoria guidelines to ensure the swing stages are safe for use by the worker including but not limited to: ... AS 1735.2–2001 Australian Standard — Lifts, escalators and moving walks, and in particular Section 12; (iii)AS 1735.9–1994 Australian Standard — Lifts, escalators and moving walks — Part 9: Special Purpose Industrial Lifts, and in particular Section 12; ... ".

> Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482: "[38] The travelator is a modular structure consisting of sections known as pallets. The accident occurred after the plaintiff stepped onto the travelator, which was descending. Unlike an escalator, a travelator does not have steps, but is effectively a moving walkway. The travelator was constructed with a gradient of 12 degrees to the horizontal. This was the upper limit of the permitted gradient specified in a 1996 Interim Australian Standard: Lifts, escalators and moving walks — Moving walks(AS 1735.6(Int)–1996) and recommended in a 2008 report prepared by the Monash University Accident Research Centre commissioned by the Australian Building Codes Board."

> Dimitrelos v 14 Martin Place Pty Limited and 3 Ors [2007] NSWCA 85.

> Travellator speed: South Sydney Junior Rugby Leagues Club Ltd v Gioia & Ors [2000] NSWCA 249, [6]: "[6]  The obstacle to escaping his Honour's finding is the report of an expert, Mr Burfitt, who examined the escalator in detail, although two or three years later. At that time, Mr Burfitt concluded that the speed was within the limits set out in Australian Standard AS 1735.5 1986 escalators. But, bearing in mind the time which elapsed between the accident and Mr Burfitt's inspection, particularly as the Court was left in total ignorance as to what happened on the occasional inspection which might have taken place in this interval, I do not think any safe reliance can be placed on Mr Burfitt's conclusion."

> City Elevator Services Pty Limited v Burrows [2004] NSWCA 26: "[24]  The report does not purport to be one made from observation at the time of the accident but some four years later. The author of the report had, it appears, inspected the 1997 and 1998 records and, in particular, “The Report of Findings and the Record of Service Calls”; see para 6 and App A of the report. [25]  Dr Shafaghi described visiting the site of the accident and inspecting the function of the elevator against a standard being AS 1735.2–1997. This was for “Passengers and Goods Lift” – “Electric Australian Standard”, extracts from which are attached to his report as App B. He described his inspection as “purposely limited to the design of the doors and their closing functions, overlaps, passenger protection devices and dimensions”. [26]  The appellant rightly observes that there was no evidence showing that the lift was operating outside the Australian Standard. That is a matter of some significance when it comes to considering the basis for contending that the adjustments made by Mr Hoogvliet were actually necessary to render the lift safe, as distinct from being done out of an abundance of caution following an accident as Mr Hoogvliet in his evidence asserted. It must be fundamental to establishing negligence in circumstances of the present kind to demonstrate not merely that the accident would not have occurred had the adjustments been made, but also that (a)the appellant’s conduct by act or omission in neglecting to make such adjustments would have led a reasonable man in the appellant’s position to have foreseen that such conduct involved a risk of injury to the respondent or to a class of persons including the respondent, (b)applying the Shirt calculus, making the adjustments must be what a reasonable person would do by way of response to the risk; that is to say, judging that risk according to its magnitude and probability “along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the defendant may have”.".

> AS 1735.1.1:2022: "3.76.12 Inspection operation maintenance operation ... facility to operate a lift for inspection and maintenance purposes at a speed of not more than 1m/s .. Note 1 to entry: Inspection is done from on the car roof, within the car or within the machine room. .. 3.88 rated speed contract speed ... <electrohydraulic lifts> speed at which rated load is designed to be carried in the upward direction. ... <passenger, goods and service electric lifts> mean of the speeds in the upward and downward directions when carrying rated load, acceleration and retardation being disregarded. <escalator and moving walk> design speed for unloaded running conditions."

> AS 1735.1 General Requirements: <https://pdfcoffee.com/qdownload/as-1735-1-2003-lifts-escalators-and-moving-walks-general-requirements-pdf-free.html> archived at <https://perma.cc/7LF5-GK9X>. 

> AS 1735.12 Facilities for Persons with Disabilities: <https://pdfcoffee.com/as-173512-1999-lifts-escalators-doe-disabled-pdf-free.html>, archived at <https://perma.cc/PEY9-5PQD>.  

> AS 1735.5: Lifts, escalators and moving walks: 

= AS 1735.5.1:2019 Lifts, escalators and moving walks, Part 5.1: Safety of escalators and moving walks - Construction and installation (EN 115-1:2017, MOD): " .... 5.2.2 Angle of Inclination  The angle of inclination of the escalator shall not exceed 30 degrees, but for risees not exceedingg 6m and a nominal speed not exceeding 0,50m/s the angle of inclination is permitted to be increased up to 35 degrees (see alpha in Figure 5). The angle of inclination of moving walks shall not exceed 12 degrees. ... 5.4.1.2.2 The nominal speed of an unloaded escalator shall not exceed -- 0.75 m/s for an escalator with an angle of inclination of up to 30 degrees; -- 0,50m/s for an escalator with an angle of inclination of more than 30 degrees up to 35 degrees. 5.4.1.2.3 The nominal speed of moving walks shall not be higher than 0,75 m/s. Deviating from the above a nominal speed up to 0,90 ms is permitted provided the width of the pallets or the belt does not exceed 1,10, and at the landings, the pallets or the belt move horizontally for a length of at least 1,60m before entering the combs. The before mentioned requirements do not apply to moving walks with acceleration paths or moving walk systems with direct transition to moving walks travelling at different speeds. ... 5.7 Landings ... 5.7.3 Combs ... [further technical dimensions and requirements]"

= AS 1735.5.2:2019 Lifts, escalators and moving walks, Part 5.2: Safety of escalators and moving walks - Rules for the improvement of safety of existing escalators and moving walks (EN 115-2:2017, MOD): " .... 5.4.2.6 The stopping distances for unloaded and downward moving loaded escalators shall be indicated in Table 2: Nominal speed v / Stopping distances between: [0.50m/s / 0.20m and 1.00m]; [0.65m/s / 0.30m and 1.30m]; [0.75m/s / 0.40m and 1.50m]... The stopping distances for unloaded and horizontally or downward moving loaded moving walks shall be indicated in Table 3: [0.50m/s / 0.20m and 1.00m]; [0.65m/s / 0.30m and 1.30m]; [0.75m/s / 0.40m and 1.50m]; [0.90m/s / 0.55m and 1.70m]."

= AS 1735.5.3:2019 Lifts, escalators and moving walks, Part 5.3: Safety of escalators and moving walks - Correlation between AS 1735.5:2015 and AS 1735.5.1:2019 (CEN/TR 115-3:2017, MOD).

= AS 1735.5.4:2019 Lifts, escalators and moving walks, Part 5.4: Safety of escalators and moving walks - Interpretations related to AS 1735.5 series of standards (CEN/TS 115-4:2015, MOD).

[A21AA] Carparks - Street Parking - Design

[A21A] Stairs: 

[A21A.1] Causation - wetness of shoe from spill or elsewhere - whether wetness of shoe would have caused slip on particular surface: Jackson v McDonald’s Australia Ltd [2014] NSWCA 162: "[119]  The appellant was required to prove on the balance of probabilities that there was water on his shoes and that this caused him to slip. He did not say that he knew that his soles were wet; he merely surmised that they were. Even if it be assumed that there was water on his soles when he slipped on the particular surface, it does not follow, as a matter of “common experience”, that it is more probable than not that he slipped by reason of the wetness of his shoes. The appellant submitted that it was more probable that, if his shoes were wet, he slipped because of the water on them rather than for any other reason. But there is nothing in common experience that tells us that someone with wet shoes who traverses a floor having the particular characteristics of the McDonald’s floor is more likely to slip because of water on their shoes than for any other reason, such as inattention (because engaged in conversation or for any other reason), excessive speed or failing to take advantage of a handrail. People wearing dry shoes walk on wet stairs every day and do not slip. People wearing wet shoes walk on dry stairs every day and do not slip. People wearing dry shoes slip on dry stairs every day. And, as Heydon JA observed in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32], stairs are, in any event, “inherently, but obviously, dangerous”. [120]  The appellant, having walked through a wet area of the floor, stepped back over the pile of rubbish and then traversed either about one metre or about two to three metres of dry surface which included the white bubble tiled area at the top of the stairs. He lost his footing either at the top of the stairs (where the white bubble tiles were installed) or on the second or third stair of the nine stairs equipped with handrails which had slip preventing strips along their outer edges. The McDonald’s employees who gave evidence referred to non-slip qualities of the floor tiles themselves, the white bubble tiles and the strips on the edges of the stairs. Mr Shalen, who was involved in the renovation of the premises some three years earlier, gave evidence that the particular flooring materials had been chosen because of their slip-resistant qualities. [121]  It was for the appellant to prove that water on his shoes, if present, would have caused, on the particular floor surfaces, slipping that would not have occurred if no water had been present. The task of proof was facilitated, if at all, only by s 144 of the Evidence Act 1995 (NSW) which, as the High Court recognised in Gattellaro v Westpac Banking Corporation [2004] HCA 6 ; 78 ALJR 394 at [17], dispenses with the need for proof only as to matters which are “common knowledge”. The need to prove the effects of wetness on one’s soles when traversing flooring materials of the particular kinds would therefore be avoided if those effects were “common knowledge”. It cannot be said that “common knowledge” provides an answer to the question whether a person wearing shoes of the particular kind the appellant was wearing is more likely to slip on flooring materials of the particular kinds within the McDonald’s premises when the soles of the shoes are wet than when they are dry. [122]  The appellant did not call any evidence from persons qualified to express an opinion on the issue of slip resistance of the particular surfaces and the effect that wetness on soles might be expected to have had: compare the plaintiffs in, for example, Cherry v Jaymardo Pty Ltd (above), Glad Retail Cleaning Pty Ltd v Alvarenga (above) and Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410. Nor did the appellant call any expert evidence as to the likely state of a sole of the kind he was wearing after it had traversed a wet area and then a dry area of between one and three metres consisting of the particular surface in fact installed at the top of the stairs. He thus chose to leave an evidentiary vacuum on the issue of, first, the extent to which soles of the particular kind, having encountered wetness on the floor surface, were likely still to be wet at the time of his fall and, second, the propensity of soles of the particular kind, if wet, to cause slipping to a greater degree than if dry when traversing surfaces of the particular kinds. ... [125]  It follows from what I have said about lack of proof of causation that neither McDonald’s nor Holistic incurred liability for any breach of duty of care on its part. ... [184]  The relevant risk was that explained by Barrett JA at [96], to which I would add the risk that the soles of the shoes of someone crossing the mopped floor might retain not just moisture but also (or instead) some residue from the non-slip detergent. [185]  I agree with Barrett JA that mopping the floor in sections was a simple precaution that would have prevented any such risk. It was not suggested that this was an onerous precaution to take. It was in fact the direction given by McDonald’s to its own staff as to the protocol in relation to mopping of floors. [186]  I am not convinced that McDonald’s and Holistic were entitled to assume that a person in the appellant’s position would appreciate the possibility that if he or she walked across the mopped floor there could be some moisture or residue of non-slip detergent on the soles of his or her shoes and would take the opportunity to wipe that off the shoes before reaching the top of the stairs, so as to obviate the need for any further precaution to be taken by them."

> See also, '[A13.1] Occupiers' Duty of Care' and '[A13.14] Causation' in Occupiers' Liability. 

[A21A.2] Contributory Negligence?: Stavrakijev v Ready Workforce & Anor [2018] VSC 690: "How fast was Mr Stavrakijev walking as he approached the steam chamber stairs? [55]  The defendants submitted that Mr Stavrakijev was moving too quickly, and that this was the reason for the fall. [56]  It was put to Mr Stavrakijev that he was ‘moving beyond a normal walking pace’, and that was the reason he was unable to control his movements when he fell, and he said that was not true, and that he was going down the stairs like he did every day. Mr Stavrakijev was cross-examined on a history contained in Mr Waddell’s report, ‘As he slowed his pace at the top of the stairs his foot slipped forwards, and he fell down the stairs’, and it was put to him this indicated he was moving at a fast pace and he said, ‘Like I always go there. It was the same’. Mr Stavrakijev said he frequently had to rush to complete his work, he did not run, but you had to keep up, and everyone works at that pace. [57]  Before preparing an addendum report on 8 February 2018, Mr Waddell telephoned Mr Stavrakijev to ask him how quickly he was moving at the time of the fall, and said he could not remember. Mr Stavrakijev explained that a gentleman called him on a Sunday, he was not sure who he was, that he was a bit reluctant to give him information, but that he told him something because he did not want to hang up on him. I accept Mr Stavrakijev’s explanation for the manner of his response to Mr Waddell. [58]  Mr Cavka said when he spoke to Mr Keogh the day after the fall, he told him Mr Stavrakijev was going too fast and that was a cause of his fall. Mr Cavka had his back to Mr Stavrakijev, did not see him before he fell and only saw a reflection in the control panel of Mr Stavrakijev falling. He did not give evidence of any observation he made that indicates Mr Stavrakijev was going too fast and this was a cause of his fall. Mr Keogh said, had Mr Cavka told him something about the cause of the fall, he would have recorded it in the worksheet. There is nothing in the worksheet to indicate that Mr Stavrakijev was going too fast. I do not accept the evidence given by Mr Cavka. [59]  I conclude that immediately before he fell, Mr Stavrakijev was walking quickly from the steam chamber apron to the steam chamber stairs, and that this was the usual pace at which he worked. ... Contributory negligence [124]  The defendants allege contributory negligence, first, because Mr Stavrakijev knew there was water and debris on the platform and was rushing; second, Mr Stavrakijev failed to hold the handrail; and third, he failed to clean the platform or to complain about the state of the steam chamber stairs. [125]  I conclude that immediately before he fell Mr Stavrakijev was walking quickly. The pace at which Mr Stavrakijev was moving was a product of Holcim’s system of work, which I have concluded was unsafe. I reject the allegation that Mr Stavrakijev was guilty of contributory negligence because he was rushing when he fell. [126]  Mr Stavrakijev was aware that there was water and debris on the landing, and that he should use the handrail when descending the steam chamber stairs. Failure to use an accessible handrail would, in those circumstances, lead to a finding of contributory negligence. However, I have been unable to reach a conclusion as to whether Mr Stavrakijev was holding the handrail when he slipped and fell, or whether he had reached a position where he was readily able to take hold of the handrail. Accordingly this allegation fails."

[A21A.3] Obvious Risk - Stairs - Wet: 

[A21A.4] Obvious Risk - Stairs - Tripping while ascending: 

[A22] Quantification of damages, where incapacity affected by pre-existing issues - medical negligence cases: 

[A23] Silicosis: 

[A23.1] Mechanism of Injury:  

[A22.2] Limitation Period - similar to that of any dust disease: "It was not until the iCare material was received by Inspector Weller in 2021, that the Regulator was aware, not only that Mr Zhang and Mr Geng had developed silicosis, but that they had developed it as a result of significant exposure over a lengthy period during their employment with Prime Marble.": SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17, [58].

[A24] Contributory Negligence: 

[A24.1] Plaintiff's own negligence - non-recoverability: Roeder v Commissioner for Railways (NSW) (1938) 60 CLR 305, 313: "The result is that the case must be dealt with on the principle of Tuff v. Warman 1 , and not on the principle of Davies v. Mann (2). In Tuff v. Warman 3 , in a judgment which has always been regarded as of the highest authority, it was laid down that where contributory negligence is in issue the proper question for the jury is "whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself SO far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened. In the first case, the plaintiff would be entitled to recover, in the latter not as, but for his own fault, the misfortune would not have happened." A direction in accordance with this statement must, in the present case, be regarded as accurate."


[B] Australian Consumer Law

[B1] Misleading and Deceptive Conduct:

[B1.1] conduct "in trade and commerce": Ireland v WG Riverview Pty Ltd [2019] NSWCA 307, [65] (citing Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592: "it is necessary to consider that conduct from the perspective of a resonable person in the position of the person complaining of it" ;Williams v Pisano (2015) 90 NWSLR 342, [37[, [42] ("character of the act that is the subject of the complaint, so far as the person doing the act is concerned, is critical); YTO Constructions Pty Ltd v Bhatt [2022] NSWDC 348.

[B1.2] in the Construction Context:

[B1.2.1] M+DC arising from Design Certificate: see Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223 (note, Court dd not decide on this point. parties accepted) - aff'd by High Court (special leave to appeal refused): "This application raises no arguable error of principle. Accordingly, special leave should be refused.": Australian Consulting Engineers Pty Ltd v Mistrina Pty Ltd (in liq) [2021] HCASL 52. See also, The Owners – Strata Plan No 87265 v Saaib; The Owners – Strata Plan No 87265 v Alexandrova [2021] NSWSC 150 [493]; Stav Investments Pty Ltd v Taylor; LK Group Investments Pty Ltd v Taylor [2022] NSWSC 208, [531].

[B1.2.2] M+DC not established from completion letter: see Robt Jones v First Abbott (1997) 14 BCL 282; BC9705777.

[B2] Breeder - Consumer Protection Legislation: here.

[B3] Pet Goods and Services - Consumer Protection Legislation: here.

[B4] University - supervision of doctoral student - trade and commerce: (obiter) Mbuzi v Griffith University [2014] FCA 1323, [106]-[114] (Collier J). 

]B5] Generalizations: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177, at 200 (Deane and Fitzgerald JJ): “generalizations are themselves liable to be misleading or deceptive”. 


[C] Statutory Duty of Care

[C1] Public Authorities:

[C1.1] Corrective Services - Duty of Care: Waters v Wigger [2016] WASC 377, [58]; LWD v Western Australia [2013] WASCA 229, [27] (Buss JA); Prisons Act 1981 (WA). Scope of Duty: State of Western Australia v CGT [2018] WASCA 226, [81] (Buss P, Beech JA and Hall J); Smith v Western Australia [2010] WASCA 176, [68] (Buss JA); Ljuboja v R [2011] WASCA 143, [119] (Buss JA), Prisons Act 1981 (WA) s 83. Application of s 5W of the Civil Liability Act 2002 (WA): Castles v Secretary to the Department of Justice [2010] VSC 310, [108]-[109]; (in similar vein) Knight v Home Office [1990] 3 All ER 237 (QB).


[D] Actions against Insurers - Corporations Act 2001 (Cth) s 601AG - see here.


[E] Limitation Act

[E1] Accrual - Injury - when plaintiff becomes aware that he or she sustained a not insignificant personal injury or upon the first manifestation of such an injury, whichever occurs first: see Barr v Farrell [2013] WASCA 211, [29] (Newnes JA); Limitation Act 2005 (WA) s 55. 

[E2] Pre-action steps, non-compliance, Prejudice - application to extend limitation period dismissed: "In Morrison-Gardiner v Car Choice Pty Ltd[13] this Court referred to the context in which s 57(2)(b) exists and said: “The discretion to permit the commencement of proceedings after the expiration of a limitation period is to be exercised in this context. It is clearly meant to ameliorate the plight of a claimant who is unable to comply with the requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension. The discretion is likely to be exercised favourably only in those cases where a claimant’s circumstances make it difficult to comply with the requirements of the Act and commence proceedings within three years or where, despite making conscientious efforts to comply with the requirements of the Act, a claimant nevertheless does not do so within three years of the accident. Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion. Claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them are unlikely to obtain an extension of time though, of course, each case must be decided on its individual merits.” ... The applicable principles were later usefully summarised by McMeekin J in Paterson v Leigh & Anor,[15] in a way approved by this Court in Blundstone v Johnson.[16]  His Honour referred to Morrison-Gardiner and Winters, and other authority, and said:[17] “The principles that seem to be to emerge from these cases are: (a)          The discretion to be exercised in respect of an application pursuant to [s 57(2)(b)] of the Act is unfettered; (b)          The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour; (c)          Where an applicant is able to show that the delay which has occurred was occasioned by a ‘conscientious effort to comply’ with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a ‘dominating consideration’. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion; (d)          Where an applicant is not able to show that the delay was occasioned by ‘a conscientious effort to comply’ with the Act that is not fatal to the application; (e)          Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion; (f)          The length of any delay is important and possible prejudice to the defendant is relevant; (g)          Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter; (h)          The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration; (i)          The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.” The learned primary judge expressed his findings in this way:[18] (a)          Mr Jonathan had made a decision to effectively do nothing to advance his claim from March 2013 to July 2015; (b)          his failure to attend upon an independent medical examination as requested meant that RACQ had been denied the opportunity to have him examined in a timely fashion; (c)          that conduct may now significantly prejudice RACQ; (d)          one example of the risk of prejudice was that, if he is now found on examination to be free of symptoms, it is likely to be effectively impossible for RACQ to obtain evidence, other than that based solely on Mr Jonathan’s own evidence or statements, as to when that might have happened; (e)          another example was, if his condition has worsened, it is impossible or difficult for RACQ to now obtain evidence to explain how or when that occurred, or to explain how that might or might not be related to the original injury; (f)          the possibility of that prejudice was because, or significantly because, Mr Jonathan’s decision to absent himself from the progression of his claim; (g)          because of Mr Jonathan’s expressed indifference to the need to attend to his solicitors in the days prior to the hearing, there was no satisfactory explanation of how, if at all, his condition might have changed since seeing the specialists in 2013, or how his condition now affects his claim; and (h)          it was improbable that the fact, and significance, of limitation periods were not explained to Mr Jonathan during the time he consulted the solicitors. Those findings led to the conclusion that: (i) there was a significant risk of prejudice to RACQ if the proceedings were permitted; (ii) Mr Jonathan had not demonstrated good reason to exercise the discretion to extend time; (iii) he had failed to make any conscientious effort, or any effort at all, to comply with the requirements of the Act; (iv) rather, he had chosen to absent himself from the jurisdiction without providing any instructions to his solicitors and regardless of the consequences; and (v) the interests of justice required that the application be dismissed.[19] I am unable to accept the contention that there is demonstrated error in the findings of the learned primary judge or that the discretion miscarried.": Jonathan v Mangera & Anor [2016] QCA 86. 


[F] Action for Debt

[F1] Meaning of 'Demand: see Morris v Hallett Brick Industries (1996) 67 SASR 328, (Perry J): "there must be a clear intimation that payment is required to constitute a demand; nothing more is necessary, and the word "demand" need not be used; neither is the validity of a demand lessened by its being clothed in the language of politeness; it must be of a peremptory character and unconditional, but the nature of the language is immaterial provided it has this effect".

[F2] Guarantor - Guarantee - Requirement for a Demand Served - Cause of Action: see Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1998] FCA 682 (Davies J): "when a guarantee or mortgage requires the making of a demand, that demand must be served before the cause of action arises"; if, for example, the pre-condition of the guarantor's liability require both a demand on the principal debtor and guarantor, then the failure to give a demand to the principal debtor will not give rise to the accrual of the guarantor's liability, even though a demand was made to the guarantor: Hongkongbank of Australia Ltd v P J McKenna & Ors (Supreme Court of Queensland, unreported, No. 1010 of 1990, 9 October 1992, de Jersey J), BC9202348 at page 7.

[F3] Writ as sufficient demand: Meaning of 'Demand: see Eutech Pty Ltd v Valiant Holdings (Singapore) Pte Ltd [1994] QSC 84, at page 22-24 (Dowsett J): "the demand contained in the writ being sufficient to found [the cause of action]"; See also, In the Matter of the Solicitors Act, 1981; An Application by Igaki Australia Pty Ltd [1007] ANZ ConvR 527, Fryberg J (QSC): "the issue of a writ was a sufficient demand of payment"; See also, Swane v Marsh (Unreported, NSWCA, No. 297 of 1977).

[F4] Extension of time does not discharge the surety: see Eutech Pty Ltd v Valiant Holdings (Singapore) Pte Ltd [1994] QSC 84, at page 22-24 (Dowsett J).


[G] Enforcement of Orders/Judgments Overseas

[G1] Issues with enforcement of Interim Orders of the Family Court of Western Australia in Singapore: see DGX v DGY [2024] SGHC 17 (Lee Seiu Kin J) <https://www.lawnet.sg/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&p_p_col_id=column-1&p_p_col_pos=2&p_p_col_count=3&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=/Judgment/30968-SSP.xml>. 

[G2] Family law proceedings - Forum Non Conveniens - Domicile


[H1] shitty conduct, maintenance lump sum: 

> "[19] ... PH claimed that RW had behave in such a way that had been excessive, embarrassing, and abusive physically and mentally and any attempts at reconciliation had failed. She is of such a character, personality and behaviour that he could not reasonably be expected to continue living with her. These allegations were not rebutted by RW because she failed to be present at the trial though the hearing date had been given to offer her explanation and/or rebuttal evidence. She did not rebut the claim that she was abusive to her husband and other incidents as set out in the tabulation at para 9 above by offering her explanation and/or rebuttal evidence.... In Q.44- of his witness statement, PH stated that the reason for filling this divorce petition is premised on the allegations that he had been abused verbally and mentally. He went on further to claimed that RW is abusive towards him, his families, friends and business associates and he could no longer stay in an abusive marriage as it was affecting him, his family and his business ... I find that the explanation in his witness statement was not challenged and therefore, it must be accepted as true and correct (see Ng Siew Lan v John Lee Tsun Vui & Anor [2017] 2 CLJ 245;; [2017] 2 MLJ 167). In civil proceeding such as this, the court is always seized of two side to a story and ultimately an election as to which story is to be believed must be made on the facts and circumstances of the case. ... [22] It is trite that if the court finds that the wife is the cause of the breakdown of marriage then she is not entitled to claim maintenance from her husband. In Leow Kooi Wah v Philip Ng Kok Seng [1997] 3 MLJ 133, ; [1997] 1 LNS 419 Mahadev Shankar J said that in quantifying the maintenance payable, the court is required by section 78 of the LRA to base its assessment on the means and needs of the parties, regardless of the proportion such maintenance bears to the parties’ income but having regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. Since I made the findings that RW was the one who caused the breakdown of this marriage, RW is therefore, not entitled to claim maintenance from PH.": Lee Hock Teong v Ching Suet Yeen [2019] MLJU 1576, [19], [22] (Abdul Aziz J). 

> Christie Yong Vui Loong v Tracy Liew Tze Tin (Tang Yik Lan, the party cited) [2022] MLJU 3020: " ... Lee Ying Ying (P) v Tan Khoon Seng (L) [2017] MLJU 1548: ... “[18] Before any decision is made on maintenance, the law requires a judicial determination to be made on the factor for the breakdown of the marriage to enable the assignment of the breakup factor or its apportionment thereof. This is an essential issue to be determined firstly before the Court can decide on the PW’s entitlement and quantum of maintenance (if any) to be ordered against the RH. However, if the PW is proven to be the sole reason for the breakdown of marriage, she might not be entitled to maintenance.” ... Lee Hock Teong v Ching Suet Yeen [2019] 1 LNS 1976: “[22] It is trite that if the court finds that the wife is the cause of the breakdown of marriage, then she is not entitled to claim maintenance from her husband. In Leow Kooi Wah v. Philip Ng Kok Seng [1997] 1 LNS 419; [1997] 3 MLJ 133; , [1997] 1 LNS 419, Mahadev Shankar J said that in quantifying the maintenance payable, the court is required by section 78 of the LRA to base its assessment on the means and needs of the parties, regardless of the proportion such maintenance bears to the parties’ income but having regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. Since I made the findings that RW was the one who caused the breakdown of this marriage, RW is not entitled to claim maintenance from PH.”.

> Lee Ying Ying (P) v Tan Khoon Seng (L) [2017] MLJU 1548, [18], [27]: "[18]  ... Before any decision is made on maintenance, the law requires a judicial determination to be made on the factor for the breakdown of the marriage to enable the assignment of the breakup factor or its apportionment thereof. This is an essential issue to be determined firstly, before the Court can decide on the PW’s entitlement and quantum of maintenance (if any) to be ordered against the RH. However, if the PW is proven to be the sole reason for the breakdown of marriage she might not be entitled to maintenance.". ... [27] In Chee Kok Chuan v Sern Kuang Eng [2005] 4 MLJ 461 Faiza Thamby Chik J said that section 78 means that if the spouse claiming maintenance is the guilty party then the party’s claim to maintenance may be affected to the degree of that spouse culpability. In other words, the PW may not get maintenance (or less maintenance) if she is the guilty party and it does not mean that she will receive sums beyond her “needs” if she is the innocent party and the main test being the “means and needs” of the parties as envisaged in section 78 of the Act. In any event, the fault of the parties is relevant in a wife’s claim for maintenance only in that the Court shall have regard for the breakdown of the marriage. In Yap Kim Swee v Leong Hung Yin [1989] 3 MLJ 55, Siti Norma J said in view of this unqualified admission of adultery and from the pleadings that appears to be the only ground for the breakdown of the marriage and since the applicant had been guilty party the Judge ruled that she was no entitled to any maintenance what so ever. ..."

[H2] Domicile, including domicile of origin and dependence:


[%] Miscellaneous

[%1] Precedent - Stare Decisis - Australian courts must follow the decisions of appellate courts across Australia unless those decisions are plainly wrong - (query if correct?): see Glenberry Nominees Pty Ltd as trustee for the Flottman Property Trust v Xie [2022] WADC 52, [12] (Hewitt DR) citing Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

[%2] Standing - third-party standing: 

[%2.1] to enforce a trust : see Commissioner of Taxation v Sarkis [2003] VSC 349; Commissioner of Taxation v Bosanac (No 7) [2021] FCAFC 158, [28] (Kenny, Davies and Thawley JJ); Aion Corporation Pty Ltd v Yolla Holdings Pty Ltd [2013] QSC 191, [85] (Jackson J); cf Simply Technology Pty Ltd v Blair [2008] NSWSC 489, [9] (Young CJ in Eq); cf Occidental Life Insurance Co of Australia Ltd v Bank of Melbourne (1991) 7 ANZ Ins Cas 61-201, 78,320; cf Shimson v MLC Nominees Pty Ltd [2021] VSCA 363, [144] (Whelan JA); cf Whitton v ACN 003 266 886 Pty Ltd (Controller Appointed) (In Liq)(1996) 42 NSWLR 123, 159 (Bryson J in Eq).

[%2.2] to determine the private interests and rights of others: see Commissioner of Taxation v Sarkis [2003] VSC 349; Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5.

[%3] Road Rules

[%3.1] Sources: see Road Traffic Act 1974 (WA); "highway code": Road Traffic Code 2000 (WA); Roadworthiness: Road Traffic (Vehicles) Regulations 2014 (WA).

[%3.2] Requirement to report to police after accident occasoning bodily harm or proprty damage above a certain threshold: see Road Traffic Act 1974 (WA) s 56. 

[%4] Costs - pro bono

[%4.1] Indemnity Principle (successful party) and its application to party who is represented pro bono: “where a party to an action has an agreement with their legal adviser that they do not have to pay any legal costs, then the general law principle states that that party cannot recover party and party costs against their adversary”: Mourik v Von Marburg [2016] VSC 601, [23] (Wood AsJ), citing Shaw v Yarranova [2011] VSCA 55, [8], [20]; principle aff'd in Western Australia in Hancock Prospecting Pty Ltd v Hancock (No 3) [2016] WASC 423). The indemnity principle only operates to ensure that party-party costs are awarded to reimburse a party who actually incurred a liability for those costs: Sandy v Yindjibarndi Aboriginal Corporation (ICN 4370) [No 6] [2021] WASC 297, [12] (Le Miere J); Mourik v Von Marburg [2016] VSC 601 is authority for the rule that the Plaintiff is entitled to costs as against the Defendant only if prior to taxation, it had a liability to their solicitor for its costs (and not in circumstances where the solicitor was entitled to recover against the Plaintiff after the making of a successful costs order). 

[%4.2] Onus of Proof - resisting an order to pay costs of party potentially represented pro bono: the onus of establishing that the Plaintiff had no liability to pay the legal fees charged by his or her solicitors rests upon the party seeking to resist the making of a costs order, or the payment of costs pursuant to a costs order: see Hancock Prospecting Pty Ltd v Hancock (No 3) [2016] WASC 423, [27] (Pritchard J).

[%5] Scope of Model Litigant Principles: Eg, Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147, [95].

[%6] Damage for loss of use of chattel - "it is a settled principle that an owner of a chattel is entitled to general and not nominal, damages when he or she is deprived of the use of his or her chattel for a period of time because of another's wrongful conduct. The breadth of fthe principle is broad. Damages for loos of use do not depend on the form of action. Nor does it depend on what the chattel is used for: it can be used to make a profit, ..., or simply for enjoyment. There is also no need to show specific financial loss; what is compensated is the deprivation of the use of the chattel per se" - quantification of loss: Rider v Pix [2019] QCA 182, [34]-[35] (Flanagan J, with whom Sofronoff P and Morrison JA agreed).

[%7] Contracting with Foreign Consulates : 

[%7.1] Capacity to sue and be sued: A consulate is not a natural person. It is a legal person capable of being sued. A consulate has legal personality distinct from the officials who carry out consular functions: Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, [120], [124] (Manousaridis J); Al-Attar v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 500, [68] (Manousaridis J).

[%7.2] Immunity from Process of Australian Courts: No Immunity from Process in Certain Proceedings: As a general rule of law (domestic and international), an independent state cannot be sued in the Courts of Australia without its consent: Foreign States Immunities Act 1985 (Cth), ss 9, 10. By s 22, this immunity was extended to separate entities of foreign states. “Separate entity” was defined by s 3(1) to mean a corporation that was an agency or instrumentality of a foreign state. Immunity from jurisdiction refers to the amenability of a defendant to the process of Australian Courts: PT Garuda Indonesia Ltd v ACCC (2012) 247 CLR 240, 247 [17] (French CJ, Gummow, Hayne and Crennan JJ).There are several exceptions to this immunity,  including: i) Commercial transactions (s 11); ii) Contracts of employment (s 12); iii) Personal injury and damage to property (s 13);  iv) Ownership, possession and use of immovable property in Australia (s 14); v) Copyrights, patents, trade marks (s 15); vi) Membership of bodies corporate (s 16); vii) Arbitrations (s17);  viii) Actions in rem (s 18); ix) Bills of exchange (s 19); ix) Taxes (s 20); and xi) Related proceedings (s 21); 

[%7.3] Restrictive Theory of Sovereign Immunity: The absolute theory of immunity expounded in earlier cases such as USA v Republic of China [1950] QWN 5 have been modified to one of a restricted theory on introduction of the FSIA. See Adam v High Commission of Malaysia [2005] AIRC 882, [33]-[34] (Deegan Cmr).

[%7.4] Immunities of Consulate vis-a-vis its officers - Vienna Convention on Consular Relations [1963] 596 UNTS 261 (entered into force 19 Match 1967) - Consular Privileges and Immunities Act 1985 (Cth): See Republic of Turkey v Mackie Pty Ltd [2021] VSCA 77, [95] (Tate JA); Adam v High Commission of Malaysia [2005] AIRC 882, [33] (Deegan Cmr)).

[%8] Residential Tenancies Act 1987 (WA) - No Contracting Out: Residential Tenancies Act 1987 (WA) ss 27A, 82; inconsistencies void and of no effect: see Soussa v Thomas [2021] WASC 172, [86]-[90] (Smith J). Final inspection: "At the outset, I find that the Tenants were not given an opportunity to be present when the final inspection was done. The Landlord has not complied with s 29 RTA in that the Tenants were not given a reasonable opportunity to attend a final inspection. A final Outgoing Condition Report was prepared by the Agent, however, questions have been raised regarding the timing of when this was prepared. The Tenants believe it may have been done quite some time after the end of the Tenancy. They were not provided with a copy until 11 April 2019, some six weeks after they had vacated the property, contrary to the requirements of s 165 RTA. I find that the Landlord and Agent have not met their obligations under s 29 or s 165 of the RTA regarding the final inspection and preparation of the outgoing condition report. I therefore give less weight to the Landlord's outgoing condition report than would normally be appropriate.": Welch v Luke [2019] NSWCATCD 72, [37].

[%9] Nominees as Bare Trustees - Nominee Shareholding: Mercier Rouse Street Pty Ltd v Burnesses [2015] VSCA 8, [68] (n 25) (Santamaria JA); See also, Body Corporate St James Apartments v Renaissance Assets Pty Ltd [2004] VSC 438, [36]-[38] (Mandie J); Fleming v Bobb [2012] NSWC 826. 

[%10] Construction of a settlement agreement - no express release - may attract implied term of release - look to the exchange of correspondences between the parties in the lead up to agreement as a whole: Marinchek v Cabport Pty Ltd [2010] NSWCA 334, [34]-[48], [58] (Mcfarlan JA); Cabport Pty Ltd v Marinchek [2013] NSWCA 51, [39] (Meagher JA).

[%11] Employer's Indemnity for Employee's Acts and Omissions: Hollis v Vabu Pty Ltd (2001) 207 CLR 21; New South Wales v Lepore (2003) 212 CLR 511, [40], [202], [223], [225]-[232]; Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90, [55] (McLure P), [69] (Murphy JA), [86] (Mitchell JA); indemnify the employee against all liability incurred in the reasonable performance of thet employment, including legal costs: Williams v Lister & Co (1913) 109 LT 699, 700 (Vaughn Williams LJ); Scope of indemnity does not cover employee's personal property used in the course of employment: Simmonds v Commissioner for Railways [1948] St R Qd 19, 29 (EA Douglas J, QCA); Matthews v Minister for Education (1997) 17 SR (WA) 225 (Sadlier DCJ).

[%12] Expert Report - Expert (no property in a witness) - Legal Professional Privilege: see, PTA of WA v Leighton Contractors [2017] WASCA 151; Trade Practices Commission v Sterling (1979) 36 FCR 244, 245; [1979] FCA 59 (Lockhart J): "... Communications between the various legal advisers of the client ...". Common Law Waiver: Mann v Carnell (1999) 201 CLR 1; Sekhon v the Director of Quarantine [2013] FCCA 331, [14] (Simpson J): "28. At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in may senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communication between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received. 29. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of confidentiality; not some over-riding principle of fairness operating at large.”.

[%13] Development of the Common Law: White v Johnston [2015] NSWCA 18 (Leeming JA):"As Gageler J said in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14 ; 88 ALJR 552 at [107], by reference to Windeyer J’s judgment in Attorney-General (Vic) v Commonwealth [1962] HCA 37 ; 107 CLR 529 at 595: The point is not to look back to “an assumed golden age” but rather “to help us to see more clearly the shape of the law of to-day by seeing how it took shape”. [99] Joseph Raz, echoing Selden, has referred to this “Janus-like aspect of interpretation”, which “faces both backward, aiming to elucidate the law as it is, and forward, aiming to develop and improve it”: J Raz, Between Authority and Interpretation, Oxford University Press, 2009, p 354, and see S McLeish, “Challenges to the Survival of the Common Law” (2014) 38(2) Melbourne University Law Review (Advance) at 5. So to do is an essential aspect of the curial function, which seeks at the same time to maintain legal continuity as well as a capacity for incremental development and innovation. And an historical perspective draws upon a rich resource of legal analysis, which ought not lightly to be disregarded. After all, as Viscount Simonds acknowledged in Chapman v Chapman [1954] AC 429 at 444, “[i]t is even possible that we are not wiser than our ancestors”, although contemporary law may operate in different conditions from those to which earlier judgments were directed."

[%14] Long Covid: no agreed definition of long-covid: B Hereth et al, ‘Long Covid and Disability: A Brave New World’ <https://www.bmj.com/content/378/bmj-2021-069868>. Particularly interesting is a published decision by the Broadcasting Standards Authority of New Zealand in April 2022. The Broadcasting Standards Authority had occasion to adjudicate on what was essentially a peculiar complaint that Radio New Zealand (in around November 2021), who interviewed an Oxford University researcher on their study into the neurological complications of Covid, had “deliberately engaged an interviewee who they should have known would present a minority view on Long Covid … the broadcast was extremely biased towards the psychological basis of Long Covid and away from the predominant view of Long Covid as a physiological illness (cellular bio-markers have been found), this causes harm for those with long Covid and by extension CFS / ME …”. The complainant’s dissatisfaction “appears largely due to [the researcher]’s association with the discipline of psychiatry rather than with the study itself, which investigated a very broad range of symptoms”. The Broadcasting Standards Authority made the following salient findings, the latter two of which, I think, expresses an urgent and pressing focal point for researchers, policymakers and lawmakers alike:  “Long COVID was never referred to as a psychological disorder and we did not view the broadcast as implying it was. To the contrary, [the researcher] outlined various physical mechanisms which could cause long COVID and referred to the ‘neurological’ complications of COVID … [and] there was ‘going to be a mix of biological and psychological mechanisms for a few of the complications’. ... The long-term effects of COVID-19 is clearly a topical issue of public importance. The cause and characterisation of long COVID is currently a rapidly expanding area of research, subject to uncertainty and scientific debate. ... it is not the Authority’s, or broadcaster’s, role to conclusively establish the cause of long COVID or its effects. … this is a growing area of research and there are no currently agreed ‘facts’ on the causes and characterisation of long COVID. Healthy debate around contentious issues should be encouraged as it can strengthen the science, challenge claims and lead to a push for better forms of evidence.”: Barron and Radio New Zealand Ltd [2022] NZBSA 43, [3] <http://www.austlii.edu.au/cgi-bin/viewdoc/nz/cases/NZBSA/2022/43.html>.  New clinical research may support more definitive characterisation of long Covid. In turn, these research may support the legal recognition of long Covid as disabling, and precipitate long-covid sufferers’ better access to healthcare and disability support.

[%15] Fact-Law distinction, practical example is in the operation of section 10A of the Civil Liability Act 2002 (WA): Natasha Burn and Benjamin Wong, 'General Damages in Mesothelioma Claims - Torok v Allianz Australia Insurance Ltd and Armitage v New South Wales' (2023) 38(6&7) Australian Insurance Law Bulletin 78-80  (LexisNexis, archive). 

[%16] Evidentiary Standard: see: Prime Form Cutting Pty Ltd v Baltica General Insurance Co Ltd (1990) 6 ANZ Ins Cas 61-028, "the probability of one hypothesis is relative to the probability of competing hypotheses: Roeder v Commisioner for Railways (New South Wales) (1938) 60 CLR 305, 333, per Evatt, J. As Dixon, J. observed in Briginshaw v Briginshaw (1938) 60 CLR 336, 361, "... when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality"".

[%17] Declaratory Relief - Facts: National Australia Bank Limited v Nautilus Insurance Pte Ltd [2019] FCA 1543, [108]:"108. The fact that the whole controversy will not be settled is not the point. It is if the declaration is not grounded in concrete facts. The consequence of that is that the same question might have to be litigated again between the parties if and when the question is raised on special or concrete facts. In Bass the answers to the question asked and answered in the Federal Court were given by reference to a pleading, not by reference to agreed or found facts. Their Honours said at 198 CLR 357 [49]: “As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state?— let alone answer — preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.”"

[%18] Legal latin in legal reasoning, use of conclusionary metaphors, cautionary tale: "One danger which is present in this area of legal reasoning is that resort to metaphors or Latin phrases may result in a failure to identify the facts on which a conclusion is based. Metaphors may illuminate, but they are often unhelpful. Hart and Honoré famously explained how easy it is “to be misled by the natural metaphor of a causal ‘chain’”: H Hart and T Honoré, Causation in the Law (2nd ed, 1985, Clarendon Press) at 72. Latin phrases may also mislead, especially if their meaning is not clearly grasped. Argo’s liability does not depend upon whether or not a “chain of causation” has been broken. Nor does Argo’s liability depend on whether Sydney Trains’ reopening of the stairway was a novus actus interveniens. To the contrary, to state that the chain of causation was broken, or that Sydney Trains’ reopening of the stairway was a novus actus interveniens is merely to state the conclusion for which Argo contends, without explaining how or why that conclusion is reached. And the person to whom such a submission is made may be distracted by the metaphor or the Latin and thereby fail to appreciate that the submission is one which is devoid of reasoning. It is much clearer to use plain English. The law has long proceeded on the basis that more than one act may be a sufficient cause of an injury, in which case (subject to statute such as Pt 4 of the Civil Liability Act providing otherwise) both acts will be regarded as a cause of the entirety of the loss or damage. Thus in Agricultural Land Management Ltd v Jackson [No 2] (2014) 48 WAR 1; [2014] WASC 102 at [429], Edelman J observed that it has become well-accepted that the chain of causation is not necessarily broken by the act of a plaintiff which constitutes a more immediate cause of the loss or damage than the defendant’s negligence. The metaphor that there was a break in the chain of causation, or that something else is a novus actus interveniens, is merely a way of saying that notwithstanding a breach of duty by Infrastruction of its implied promise to provide tiles which were fit for purpose, and despite that breach being a cause of Ms Michael’s injury, Sydney Trains’ later conduct should be regarded for the purpose of determining liability as the sole cause of the injury, and Infrastruction’s earlier breach should not be regarded as having caused that injury. Once the legal test is expressed in ordinary words, rather than conclusionary metaphors or Latin phrases, it is tolerably plain that Argo must fail on this issue. Argo bore the onus. Argo made no attempt to establish what in fact happened at Penshurst railway station after around 26 April 2016 when Infrastruction’s Site Manager received the slip resistance test results. I would accept that, in principle, if Sydney Trains instructed Argo to proceed to tile the remainder of the stairway with the same tiles, notwithstanding the results, with full knowledge that the surface would be more slippery than its specification, then that would be a proper basis for the conclusion that Argo’s breach should not be regarded as causing Ms Michael’s injury. But Argo did not come close to making out a case of a deliberate decision to reopen a stairway known to be more slippery than Sydney Trains’ specification.": Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101 [117]-[120] (Leeming JA). 

[%19] Pre-action Discovery / Disclosure: 

[%19.1] UCPR: Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591, [19] (Tamberlin J):"The purpose of preliminary discovery is not to produce material that will strengthen or enhance a decision to commence proceedings, but rather to provide what is reasonably necessary to enable the decision to be made"; see also, Gary Doherty, 'Preliminary Discovery of Documents from a Prospective Defendant' (March 2015) <https://13wentworth.com.au/wp-content/uploads/2019/01/Preliminary-Discovery-from-a-Prospective-Defendant-G-Doherty-2015.pdf>. 

[%19.2] s 27(1)(b) PIPA (Qld): section 27(1)(b) of the Personal Injuries Proceedings Act 2002, that section, relevantly, provides, a respondent must give a claimant (b) if asked by the claimant (i) information that is in the respondent's possession about the circumstances of, or the reasons for, the incident."

> see also, David Cormack, 'PIPA s.27(1)(b) and disclosure' (2 March 2011) <https://barristerdirect.com.au/pipa-s-271b-and-disclosure/>, archived at <https://archive.is/bVOJq>.  

> see also, David Cormack, 's.27(1)(b) PIPA – provision of information – ‘slip & fall’ – circumstances of the incident' (5 August 2010) <https://barristerdirect.com.au/s-271b-pipa-provision-of-information-slip-fall-circumstances-of-the-incident/>, archived at <https://archive.md/aIUr0>.

> See also,  Wright v KB Nut Holdings Pty Ltd [2010] QDC 91, [37]-[38]. 

> see also, David Cormack, 'PIPA disclosure and de facto interrogatories' (20 April 2010) <https://barristerdirect.com.au/pipa-disclosure-and-de-facto-interrogatories/>, archived at <https://archive.is/YjGEd>.  

[%19.3] PIPA: s 27(1)(b); have regard to liability context of 'incident' (as alleged in Notice of Claim)? [Limited exception to Wright and Fletcher above?] (claim of negligence arising from alleged constructive knowledge, ie, "ought" to have known/done something - request for facts (ie, any complaints [which raises inference of actual or constructive knowledge]) that might be relevant information to explain the alleged cause of the injury, that is the failure to act) {ie, facts that have explanative power for why an incident occurred, but not explanation as to why DOC was breached}: "[12] When construing s 27(1)(b)(i) it is necessary to take into account the influence of the context in which it appears and its role in giving effect to the statutory purpose of putting the parties in a position where they have enough information to assess liability and quantum in relation to a claim. Having regard to the statutory scheme, the expression in the definition of “incident”, incorporated into s 27(1)(b)(i), “alleged to have caused … the personal injury”, refers to an allegation made by the claimant in the claimant’s notice of claim given under division 1.[13] The appellant’s notice of claim describes the “incident” as being that the claimant was subjected to sexual abuse perpetrated by carers, including M, whilst the appellant was a resident at the Home. The appellant alleges that the appellant was sexually abused regularly, including in the presence of other residents and other staff, and that caused the appellant to sustain a psychiatric injury. The term “incident” in s 27(1)(b)(i) therefore comprehends each alleged act of sexual abuse of the appellant by M (and others). ... [26] The statutory context and purpose described in [6] of these reasons must be taken into account in construing the expressions “the circumstances of” and “the reasons for”.  With that in mind, the required information about the reasons for and the circumstances of the incident must comprehend information relating to the question whether the respondent may or may not be found liable and the appropriate quantum of the claimant’s claim.  In considering those matters, the statutory scheme requires reference to the claimant’s notice of claim. [27] Section 18 of the appellant’s notice of claim form is headed “Detail the reasons why the injured person believes that person caused the incident”.  (The expression “that person” refers to the respondent).  The first paragraph of the form under that heading states that “the reasons must particularly identify the step, process or act/s of the person that caused the incident and the link to the named respondent …”.  After a statement that the appellant was under the “care and control of the [r]espondent”, this section of the claim describes two different bases of claim. ... [113] The second category refers to an “act, omission or circumstance”. Each of those is qualified in the sense that it each refers to what is alleged to have caused all or part of the personal injury. Given that s 27 applies before any proceedings are commenced in court, each refers to what is alleged in the notice of claim as being the cause of the personal injuries. [114] Therefore, the information required to be given under s 27(1)(b)(i) falls into two categories. One is information about “the circumstances of … the act, omission or circumstance, alleged to have caused all or part of the personal injury”. The second is information about “the reasons for … the act, omission or circumstance, alleged to have caused all or part of the personal injury”. As the legislature chose to use both formulations it may be accepted that there is a difference between what is intended by the “circumstances of”, and the “reasons for”, the relevant act, omission or circumstance. [116]There might be thought to be some circularity in the expanded phrase “the circumstances of … the act, omission or circumstance, alleged to have caused all or part of the personal injury”.  However, on closer consideration, the first refers to facts generally whereas the second refers to particular facts, that is, those that are alleged to have cause the personal injury.  It is, in my view, of little moment in light of the words which matter to the issues here, namely the “reasons for the act, omission or circumstance”. [117] In my view, “reasons for” should be understood in s 27(1)(b)(i) as referring to facts serving to explain the act, omission or circumstance that is alleged to have caused all or part of the personal injury. [118] In lay terms the difference can be explained this way.  The information as to the “circumstances of” the relevant accident, act, omission or circumstance alleged to have caused the personal injury consists of the facts as to what happened.  The formulation as used by Ambrose J in RACQ-GIO Insurance Limited v Ogilvie and adopted in Haug v Jupiters Ltd is apposite:[67] "A circumstance of the accident is any fact to which the occurrence of the accident may be attributed. In my view, upon its proper construction, ‘circumstances of the accident’ within the meaning of s. 45(1)(a) encompass all events which appertain to or are causes of the accident in which a claimant suffers personal injury.” [119] By contrast, the “reasons for” the relevant accident, act, omission or circumstance alleged to have caused the personal injury consists of facts which explain why it happened. [120] An example will serve to illustrate the distinction.  A worker sustains personal injuries by falling into a pit at the workplace, at a time when the lights are off.  Those are facts which go to the “circumstances of” the act or omission.  The employer later discovers that a strike at the electricity supplier’s generating plant led to the electricity for the lights being cut off.  That is a fact that goes to the “reasons for” the act or omission. [121] However, in my respectful view, there is no reason to put a gloss on the plain words of the statute by limiting that which must be disclosed as the “reasons for the act, omission or circumstance alleged to have caused … the personal injury”.  It may be accepted that for a fact to be a reason for the cause of what happened it must be a strand in the rope of causation, as explained by the primary judge.[68] But I do not consider that under s 27(1)(b)(i) the information is limited to what the respondent did or did not do, and excludes information relevant to the respondent’s duty in the circumstances.[69]  The plain words of the section do not suggest such a limitation, nor is it required by applying a broad, remedial construction on the section. ... [126] The respondent urged that reliance should be placed on the decisions in Haug, Oliver and Wright, and that those decisions stood as authority limiting the scope of the information under s 27(1)(b)(i). For reasons which follow I do not consider that submission should be accepted. [127] Haug considered whether documents and information had to be about the incident described and particularised in the notice of claim. At issue were orders made, based on a broad view of s 27(1)(a)(i), which had the effect that the documents to be provided did not have to be “about the incident” in the notice of claim, nor directly relevant. Ultimately the only order in contest, and therefore the only order that the Court had to deal with, was one seeking information under s 27(1)(b), namely the identifying description and location of security cameras.[72]  That was dealt with shortly, on the basis that it sought more than information about the circumstances of or the reasons for the incident.[73] [128] Oliver concerned a claimant who was injured when involved in a fight at a hotel. The claimant contended that the hotel and its security guards should have done more to evict his assailant and prevent the fight, and that the hotel did not properly train or supervise the security guards. The information requested under s 27(1)(b) went to, inter alia, whether in the 12 months prior to the incident there had been other fights between patrons.  Martin J identified various principles drawn from Haug,[74] but none of them are determinative here.  His Honour held that the questions about other fights were not facts to which the occurrence of the incident may be attributed.[75]  That conclusion sets no precedent for the current case given the more restricted form of the claimed breaches of duty made in Oliver.  The only allegation that might have come close to justifying that information was that the hotel failed to take any reasonable steps to prevent patrons at the hotel from becoming involved in a physical altercation when it knew or ought to have known of the risk of that eventuating after an initial altercation.[76]  That alleged risk was vague in content, and in any event, the fight in which the claimant was injured occurred outside the hotel. [129] In my respectful view, Wright suffers from two difficulties that prevent its adoption as authority limiting the scope of information in the present case. First, the learned judge reasoned that s 27(1)(b) was concerned with questions of causation, not duty of care, and that therefore questions could be asked of what the respondent did or did not do, but not of what it ought to have done. His Honour held that information that was “only relevant to the question of whether the respondent had a duty to do something” was not caught by s 27(1)(b)(i).[77]  In that analysis no account seems to have been taken of the impact of reading the definition of “incident” into the provision, and therefore the reasoning does not address the question of information about an omission which is alleged to have caused the injury. [130] Secondly, his Honour seems to have acknowledged that where an omission is the basis of the alleged cause, information may be legitimately sought about prior events:[79] “[35] If there is a duty to act and the defendant does not act, and if, had the defendant performed that duty and acted, the harm to the plaintiff would have been averted, it can be said that the omission was a cause of the harm the plaintiff suffered. But does it follow that a respondent must give a claimant (if asked) information about any relevant omission on the part of the respondent, or about circumstances which are sought to be relied on as giving rise to a duty on the part of the respondent to act, on the basis that it is information about the circumstances of, or the reasons for, the incident? [36] If one focuses on the scope of the reasons for the incident, it may be in a particular case that one of the reasons for the incident can be seen as an omission on the part of the respondent to do something which, if done, would have prevented the incident. On that basis, it may well be relevant to inquire about whether the respondent had done, or had not done, at or prior to the time of the incident, any particular things which if done, or perhaps if done more thoroughly or extensively, or better, would have prevented the incident. That could well cover matters like inquiries as to previous directions given by school staff to pupils in relation to their conduct, which it is alleged ultimately led to the claimant’s injury, as in Broadhead. Possibly, it might extend to information about whether or not the respondent had done anything in relation to a particular individual alleged to have been responsible for the harm as a result of previous conduct by that individual, as in Wolski.” [131] In my view, when that passage is read with what follows in paragraph [37] of Wright, his Honour’s comments cannot be accepted as limiting the information requested in this case. [132] Here the claim in negligence particularises an alleged cause of the personal injury based on, inter alia, omissions to act in the face of actual or constructive knowledge that SDA was being sexually abused by M: see paragraphs [62] and [63] above.  In such a case the fact that there were complaints about M’s conduct [==constructive knowledge], that is conduct during the period when SDA was at the Home, whenever those complaints were made, might be relevant information to explain the alleged cause of the injury, that is the failure to act.  In other words, those complaints might be facts serving to explain the cause of the omission alleged to have caused the personal injury.": SDA v Corporation of the Synod of the Diocese of Rockhampton & Anor [2021] QCA 172, [12]-[13], [26]-[27] (Fraser JA), [113]-[114], [116]-[121]. [126]-[132] (Morrison JA). 

> See also, Bill Madden, 'Abuse: Interlocutory decision on disclosure under PIPA (Queensland)' (21 August 2021) <https://billmaddens.wordpress.com/2021/08/21/abuse-interlocutory-decision-on-disclosure-under-pipa-queensland/>, archived at <https://archive.is/sSlB2>.  

> See also, David Cormack, 'Historical Sexual Abuse – disclosure of circumstances or reasons for the incident' (3 September 2021) <https://barristerdirect.com.au/historical-sexual-abuse-disclosure-of-circumstances-of-or-reasons-for-the-incident/>, archived at <https://archive.md/dDRQw>.  

> This case seems to read as supporting proposition that s 27(1)(b) includes in its scope, facts that have explanative power for why an incident (as set up or asserted in the Notice of Claim) occurred, but not to compel an explanation as to why an alleged DOC (as a matter of liability to be determined) was breached, nor compel whether a respondent had knowledge of alleged duty of care it owed - latter point, see Curry v Brisbane City Council above. 

[%19.4] PIPA: s 27(3): information disclosed need not be in the form or required to be particularised as interrogatory: "The document required in the present case is not an answer to interrogatory but a statutory declaration. The document provided was a statutory declaration. There is nothing in s 27(3) of the PIPA which requires more than the statutory requirements for a statutory declaration“: SO v Trustees of the De La Salle Brothers; MP v Trustees of the De La Salle Brothers [2022] QSC 302, [89] (Crow J). 

[%19.5] PIPA: Overarching Purpose: "As set out in s 4(1), the main purpose of the PIPA is to assist in the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury, and that may be achieved by providing a procedure for speedy resolution of claims, promoting settlement of claims at an early stage, and minimising costs of claims": SO v Trustees of the De La Salle Brothers; MP v Trustees of the De La Salle Brothers [2022] QSC 302, [90] (Crow J).

[%19.6] s 22 PIPA: 

[%19.7] Civil Law (Wrongs) Act 2002 (ACT): 

> Upton v ACT [2012] ACTSC 115. [6], [17]: "In support of their contention that the witness statements were not required to be produced, the defendants referred me to the decision of Boddice J of the Supreme Court of Queensland in Mahoney v Salt [2012] QSC 43 (Mahoney). In that case the plaintiff sought copies of witness statements and draft witness statements that were in the defendants’ possession. The plaintiff was relying on s 27 of the Personal Injuries Proceedings Act 2002 (QLD) (the PIPA) which is in substantially the same form as s 68 of the Wrongs Act. Section 30 of the PIPA is of similar effect to s 72 of the Wrongs Act. The statements sought by the plaintiff in Mahoney were obtained by loss adjusters on the instructions of the defendants’ solicitors.  In the letter of instructions to the loss adjusters, the solicitors requested that witness statements were to be forwarded to the solicitors separately from the investigation report, so as “to retain the benefit of legal professional privilege”.  The loss adjusters were instructed not to attach the witness statements to a covering letter, and not to refer to them in the investigative report. ... I am satisfied that the witness statements are part of the investigator’s report, and as such liable to production to the plaintiff by virtue of s 72 (2) of the Wrongs Act despite them being the subject of client legal privilege.". 

[%19.8] PIPA and Workers Compensation, s 16 Contribution and/or Indemnity: Independent schemes, but s 16 permits contribution to be sought in contract and in tort: "In my view the crucial question here is whether the claimant could properly bring an action against the applicant under PIPA. It is clear that neither the WorkCover Act nor the PIPA prohibit a claimant suing concurrent liable parties (Devlin v South Molle Island Resort (above)).  As Philippides J noted, “[25] Section 253(3) of the 1996 Act abolishes any entitlement of a person not mentioned in s 253(1) to seek damages for an injury sustained by a worker. The present applicant is a person mentioned in s 253(1) of the 1996 Act. It is accepted that he is a ‘worker’ within the meaning of that term as defined in the 1996 Act. He has been issued with the relevant notice of assessment. Section 253(3) does not concern such a person’s rights and does not abolish such a person’s concurrent rights. [26]          Further, to accept the respondent’s contentions would result in injustices which it cannot be accepted the legislature intended.  It would mean that an employee would only have recourse against concurrent tortfeasors where it had been determined that there was no civil liability in an employer.  However, it is not difficult to envisage that in many cases an employee could well be placed in a situation where, by the time of the determination of the employer’s liability, any action against a concurrent tortfeasor had become time barred.  Consequently, if the respondent’s submissions were accepted, an employee might well be left with no ability to pursue another tortfeasor.  Furthermore, the respondent’s contentions have the illogical consequence, as pointed out by the applicant, that while an applicant could not pursue concurrent tortfeasors, such persons could still be indirectly involved through contribution proceedings at the instigation of the respondent.” Such concurrent liability is usually founded on alternative bases such as occupier’s liability.  In Devlin’s case the applicant was seeking a declaration that the PIPA applied in respect of an injury suffered by him alleged to have been caused by the respondent’s negligence. The applicant in that case sought to pursue a claim against his employer under the 1996 Act and a claim against the respondent under PIPA. The facts were that the applicant was acting as the skipper/engineer of a vessel which travelled to South Molle Island for the purpose of loading baggage. While the vessel was docked there, an employee of the respondent threw a bag onto the deck of the vessel striking the applicant and thereby causing injury. Philippides J held that s 6(2)(b) PIPA did not have the effect of excluding the applicant’s claim against the respondent from the ambit of PIPA and made the declaration sought. That decision cannot be distinguished on the basis of the argument raised by WorkCover that the claims by the claimant in that case were both claims for personal injury and that the contribution here sought is for an alleged breach of contract. Here the claims by the claimant are both claims for personal injury. One is against the respondent, his employer, pursuant to the WorkCover Act. One is against the applicant sought to be brought pursuant to the PIPA. While it is clear that such a concurrent action is not abolished by the 1996 Act, as noted above, the basis of liability is usually on some other basis (such as occupier’s liability) rather than on the breach of duty owed by an employer to an employee. In Devlin’s case it was based on the negligent act of a third person.  Here, as noted in paragraph [5], the claim against the applicant relates primarily to alleged breaches of duties owed to the claimant by the applicant as an employer and, to a lesser extent, on other bases.  On the basis of Devlin v South Molle Island Resort, such an action can be brought pursuant to PIPA. Once Notice under that Act had been given to the applicant in this case, the procedures pursuant to PIPA commenced. The applicant was then entitled to apply for leave to add a contributor pursuant to s 16 of the Act. In any event, if the action brought by the claimant against the respondent was excluded from the operation of the PIPA by s 6(2)(b), the action would still lie independent of that scheme and the applicant could issue third party proceedings against the respondent. The fact that the ground of liability sought to be established against the respondent as a contributor is in relation to a breach of contract is, in my view, irrelevant to the right of the applicant to add a contributor under the PIPA scheme. That adding such a contributor is permissible (and desirable) can be seen in the cases mentioned above in paragraph [14]. Section 16 of the Act does not confine the ability to add, or seek leave to add, a contributor to circumstances where the grounds on which the proposed contributor is said to be liable must be in relation to a claim for personal injury. The primary action under PIPA must relate to personal injury. However, in my view, s 16 of the Act does not confine potential contributors to only those against whom a claim in relation to personal injury can be made. If the legislature wished to so limit contributors it should have said so explicitly. In any event, such a limitation would have been against some of the purposes of the Act aimed at the speedy resolution of claims and minimising costs (s 6(2)(a) and (e)). If a contributor, who would otherwise be relevant to a full resolution of the matter, could not be added, the consequence would be a separate action between the alleged contributors at a different time. Such a consequence is obviously not desirable. Such issues should all be resolved at the one trial. In any event I am of the view that the present applicant should not be disadvantaged by not being able to add a relevant contributor because the claimant has brought concurrent actions one of which is against an employer. The applicant remains liable in the proceedings commenced against it pursuant to PIPA and should be permitted to add a relevant contributor. I am also satisfied by the explanation by the applicant as to any delay in giving the written notice to the respondent pursuant to s 16. Any delay was a factor of the appropriate investigations which were conducted. That the respondent will be subject to two separate schemes is a consequence of the legislation. I am not satisfied that any prejudice to the respondent would justify refusing the application. In any event, the respondent will benefit from the procedures of disclosure, tight timeframes and compulsory conference pursuant to the PIPA regime. The application for leave is allowed.": Ridley Agriproducts Pty Ltd v CMAS Consulting Pty Ltd [2003] QDC 284, [25]-[31]. 

[%19A.1] Personal Injuries - Table of Quantum of Damages: 

[%19A.2] Assessment of Permanent Impairment: 

> Victoria: 'Significant Injury' requirement: Wrongs Act 1958 (Vic) pt VBA. 

     -- see eg, 'Update on "significant injury" requirement for claims concerning or relating to intentional torts' (Nov 2019) <https://www.landers.com.au/legal-insights-news/update-on-significant-injury-requirement-for-claims-concerning-or-relating-to-intentional-torts>, archived at <https://archive.md/5UObU>. 

     -- see, 'Understanding thresholds and caps in personal injury litigation' (Victorian Government Solicitor's Office) <https://www.vgso.vic.gov.au/understanding-thresholds-and-caps-personal-injury-litigation>, archived at <https://archive.md/2jQOK>. 

     -- see also, 'Victoria – Public Liability – Damages Thresholds and Caps' (14 April 2024) <https://littleslawyers.com.au/news/victoria-public-liability-damages-thresholds-and-caps/>, archived at <https://archive.md/bF2rT>. 

> Western Australia: <https://www.icwa.wa.gov.au/__data/assets/pdf_file/0025/106765/Threshold-Schedule-2023-2024.pdf>. 

> Useful summary of all of the state/territory caps and thresholds: <https://classic.austlii.edu.au/au/journals/PrecedentAULA/2016/19.pdf>. 

> Qld's Guidelines for evaluation of permanent impairment, 2nd ed (WorkCover, 2016): <https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0011/24122/guidelines-for-evaluation-of-permanent-impairment.pdf>.  -- AMA 5.

> NSW's workers compensation guidelines for the evaluation of permanent impairment, 4th ed, 2021: <https://www.sira.nsw.gov.au/resources-library/workers-compensation-resources/publications/health-professionals-for-workers-compensation/NSW-workers-compensation-guidelines-for-the-evalution-of-permanent-impairment.pdf>. 

> NT WorkSafe guidelines for the evaluation of permanent impairment: <https://worksafe.nt.gov.au/forms-and-resources/guides/nt-worksafe-guidelines-for-the-evaluation-of-permanent-impairment>. 

>Tasmania Guidelines for evaluation of permanent impairment: <https://worksafe.tas.gov.au/__data/assets/pdf_file/0005/542687/Guidelines-for-the-Assessment-of-Permanent-Impairment-Version-3.pdf>.

> Comcare: <https://www.comcare.gov.au/about/forms-pubs/docs/pubs/claims/assessment-of-degree-of-permanent-impairment.pdf>. 

> South Australia Return to Work Scheme, Impairment Assessment Guidelines: <https://www.rtwsa.com/media/documents/Impairment-assessment-guidelines.pdf>. 

> Western Australia: <https://www.workcover.wa.gov.au/workers/understanding-your-rights-obligations-entitlements/permanent-impairment/>. 

[%19A.3] Wrongs Act 1958 (Vic) - ss 28LT, 28LW, 28LWB - "Significant Injury": 

[%20] Ubi jus ibi remedium – where there is a right there is a remedy

[%21] Collateral Abuse of Process - Tort?

[%22] Noscitur a sociis

> Stefan Gries, Brian G Slocum, Kevin Tobia, 'Corpus-linguistic approaches to lexical statutory meaning: Extensionalist vs. intensionalist approaches' (2024) 4(1) Applied Corpus Linguistics 100079 <https://www.sciencedirect.com/science/article/pii/S2666799123000394>; <https://stgries.info/research/2024_STG-BGS-KT_IntensionalistLCL_ACorpLing.pdf>: " ... Corpora, or the data they provide, are usually studied with one or more of the following main corpus-linguistic methods: • frequencies: how often does something occur? • dispersion: how widespread are the occurrences of something?4 • collocation: what are words occurring around an expression, which is often quantified using frequencies (how often does a word occur in the vicinity of another word?), conditional probabilities (how much of a word in % occurs around another word?), or with association measures (how much is a word attracted to another word?); • concordance: what are the exact contexts of an expression?".

> Lawrence M Solan and Tammy Gales, 'Corpus Linguistics as a Tool in Legal Interpretation' (2017) 6 BYU Law Review 1311 <https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=3128&context=lawreview>. 

> Stefan Gries, 'Corpora and legal interpretation corpus approaches to ordinary meaning in legal interpretation' in Routledge Handbook of Foreign Linguistics (Routledge, 2nd ed, 2021) ch 38, 628 <https://stgries.info/research/2020_STG_CorpAppr2OrdMeangLegalInterpret_RoutlHdbkForensLing.pdf>. 

> <https://www.supremecourt.gov/opinions/URLs_Cited/OT2019/17-1618/17-1618-3.pdf>. 

> TR Lee and JC Phillips, 'Data-Driven Originalism' (2019) 167(2) University of Pennsylvania Law Review 261 <https://law.stanford.edu/wp-content/uploads/2019/05/167-U-Pa-L-Rev-261.pdf>: "This paper will showcase how typical tools of a corpus—concordance lines, collocation, clusters (or n-grams), and frequency data—can aid in the search for original communicative content. We will also show how corpus data can help determine whether a word or phrase in question is best thought of as an ordinary one or a legal term of art. To showcase corpus linguistic methodology, this paper will analyze important clauses in the Constitution that have generated litigation and controversy over the years (commerce, public use, and natural born citizen) and another whose original meaning has been presumed to be clear (domestic violence). We propose best practices, and also discuss the limitations of corpus linguistic methodology for originalism. ...".

> M Kranzlein, N Schneider and K Tobia, 'CuRIAM: Corpus re Interpretation and Metalanguage in U.S. Supreme Court Opinions' (Paper) <https://arxiv.org/pdf/2305.14719>. 

[%23] Extraterritorial law exception to immunity?; declaratory relief: 

> See also: 'Federal Court dismisses LFL case on state immunity but allows challenge on POFMA’s extraterritorial reach' (The Online Citizen, 28 November 2024) <https://www.theonlinecitizen.com/2024/11/28/federal-court-dismisses-lfl-case-on-state-immunity-but-allows-challenge-on-pofmas-extraterritorial-reach/>, archived at <https://archive.is/sAsEy>. 

[%24] "all the rights and privileges pertaining thereto": University Degrees:


[+] Medical Literature

The Merck Manual of Diagnosis and Therapy (Merck Research Laboratories, 18th, 2006), also available online as the MSD Manual <https://www.msdmanuals.com/en-au/professional>.

J. Mark Melhorn, et al, AMA Guides to Disease and Injury Causation (American Medical Association, 2nd ed, 2013).

Ian B Wilkinson, et al, Oxford Handbook of Clinical Medicine (Oxford University Press, 10th ed, 2017).

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed Text Revision (APA, 2022) <https://www.mredscircleoftrust.com/storage/app/media/DSM%205%20TR.pdf>, <https://perma.cc/XAZ2-WMTN> (DSM-5-TR).  See also, DSM-5: <https://repository.poltekkes-kaltim.ac.id/657/1/Diagnostic%20and%20statistical%20manual%20of%20mental%20disorders%20_%20DSM-5%20(%20PDFDrive.com%20).pdf>.  

John Murtagh, Murtagh's General Practice (McGraw Hill, 4th ed, 2007).

Clinical Protocols in Obstetrics and Gynaecology for Malaysian Hospitals: A must have compendium for Practitioners of Obstetrics & Gynaecology, (Editors: Prof Dato’ Dr Sivalingam Nalliah ND Prof Dato’ Dr Sachchithanantham Kanagasabai): referred to extensively in Gurisha Taranjeet Kaur (an infant suing by her father and litigation representative, Taranjeet Singh s/o Bhagwan Singh) & Anor v Dr Premitha Damodaran & Anor [2020] 9 MLJ 409, [95] (Faizah Jamaludin J, High Court Kuala Lumpur).

AMA Guides, see above.


[8 July 2024 archive of page]: <https://perma.cc/4ELT-H9SA>; [9 September 2024 archive of page]: <https://archive.is/guuri>; [28 September 2024 archive of page]: <https://archive.md/71zh6>.    

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