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Vicarious Liability, Criminal Acts, and Volunteers

Adam Kneale claimed damages from the Footscray Football Club (Club) for injuries, loss, and damage suffered as a result of child sexual abuse by Graeme Hobbs and others. The trial proceeded before a judge and a jury of 6. 

Falling from Heights – Courts consider imposing fines which might crush business viability

In recent years, District Court Judges have dramatically increased the penalties that businesses, their staff and owners (officers) face for Workplace Health and Safety (WHS) breaches. Firmly within their sights has been matters of workers falling from heights - and arguably rightfully so. Despite this, the recent involvement of Hicksons Lawyers in a fall from heights prosecution delivered a verdict that demonstrated that the Courts are not aimlessly imposing crushing fines with the sole purpose of destroying the culprit business. Rather, subject to the circumstances, the Courts are still willing to exercise their discretion to significantly reduce the penalty imposed.  

Will you be protected if you provide medical advice through an app?

There has been a proliferation of businesses in the past decade both globally and in Australia which provide medical and dental advice over the internet. The appeal to patients is obvious: convenience, low expenses and instantaneousness. But if you are the medical practitioner employed or contracted by these businesses and something goes wrong with the treatment provided, will you be afforded the same protection under the law in defending a negligence claim as you would if you had reviewed the patient in a traditional manner (i.e. in person)?

GLJ: High Court Refuses Permanent Stay in Historical Sexual Abuse Claim

On 1 November 2023, the High Court of Australia delivered its judgment in the matter of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32. The majority of the Court allowed GLJ’s appeal stating that the Court of Appeal was wrong to conclude that there could be no fair trial of the proceedings nor that the proceedings involved an abuse of process. Accordingly, it was held that the proceedings should not have been the subject of an order for a permanent stay and the appeal was dismissed.

When an Employer gives their staff exclusive access to client confidential information – the result can be disastrous: Protecting businesses in today’s connected world

We live in an era where ‘one click’ on the wrong link can create a serious privacy risk for an organisation. This topic has become particularly relevant in the past 12 months, with organised cybercrime groups targeting several high-profile Australian legal and consultancy firms, as well as Government departments. The resulting large scale data breaches can serve as a warning for all Australian businesses.  

Subpoena to Produce set aside on grounds of Legal Professional Privilege in the NSW Supreme Court judgment of Woolner v South Western Sydney Local Health District [2023] NSWSC 748

The Supreme Court judgment in the matter of Woolner v South Western Sydney Local Health District [2023] NSWSC 748 (“Woolner”) outlines the Court’s consideration of a subpoena to produce issued to a defendant’s law firm, calling for production of its communications with the client.

Schokman: The High Court of Australia considers the ‘scope of employment’ in the recent case of CCIG Investments Pty Ltd v Schokman [2023] HCA 21

A recent High Court of Australia decision in the matter of CCIG Investments Pty Ltd v Schokman [2023] HCA 21 (Schokman) deals with the extent of vicarious liability in the employer/employee relationship. The decision affirms that employers are not liable for the actions of their employees if those actions are not within the course or scope of their employment. Ultimately, the ‘scope of employment’ will turn on the facts of each individual case.

Expert evidence requirements for issue of professional negligence claims

In the matter of Netherwood v Hillier, the case dealt with an application to strike out proceedings as against the third defendant, Dr David Bell for failing to provide expert reports supporting the claim against him.  

When does a heated resignation amount to a real resignation?

It is not unusual for employees to offer a verbal resignation, often in the heat of the moment or during a contentious incident. It is also not unreasonable that employers treat any such resignation as legitimate. However, this is yet another example where Workplace Relations law in practice can vary from an employer’s expectation. In short, these kinds of ‘heated’ or impulsive resignations may lead to potential claims of unfair dismissal where employers rely on them to end the employment relationship.

Update: NSW Court of Appeal endorses Justice Jackman’s criticism of the use of direct speech in affidavit evidence

Following our recent blog on Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, the New South Wales Court of Appeal recently considered Justice Jackman’s criticism of the use of direct speech in affidavit evidence in Gan v Xie [2023] NSWCA 163. 

Peer Professional Opinion and Inherent Risk considered by the NSW Supreme Court in the recent case of Polsen v Harrison (No. 8)

A recent Supreme Court of NSW judgment in the matter of Katrina Polsen v Dr Harrison (No.8) (‘Polsen’) considers the pleading of Inherent Risk and Competent Professional Practice under the Civil Liability Act 2002 NSW (‘the Act’) and the viability of expert evidence based on assumptions which are not supported by evidence.

Recent criticism by the Federal Court: Use of direct speech in affidavit evidence

In the recent matter of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, Justice Jackman criticised the current standard practice of recording conversations in affidavit evidence. In his judgement, Justice Jackman challenged the recording of conversations as direct speech in affidavit evidence, when the witness may 'only recall the ‘gist’ of a conversation, stating that the practice is ‘logically, ethically and grammatically wrong’.

Update to the National Redress Scheme – Possible changes to eligibility criteria

On 4 May 2023, the Australian Government released the Final Government Response to the Second Year Review of the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme). According to the Minster for Social Services, Amanda Rishworth, the Response is aimed at creating a trauma-informed approach with a focus on the wellbeing of survivors. The proposed improvements include broadening the eligibility criteria, amending the application process, and removing restrictions. 

‘Your word against mine’: Where an aggravation of pre-existing conditions appeal falls short

In the recent Federal Court case of McEwan v Comcare [2023] FCA 447, Abraham J dismissed the applicant’s appeal for psychological injury on the basis that the argument of aggravation of pre-existing condition did not arise in proceedings prior to appeal. The Court held that an applicant may only bring a different case to appeal if the injury period assessed by the Tribunal was too limited or the initial case had inferred a change of condition. The decision highlights the importance of presenting all facts before the Tribunal to reduce an applicant’s opportunity for appeal on an evolution of evidence.

Public Health Orders applying to management of COVID Risks are not Employment related factors in tests of causation

During the COVID pandemic employers were supported by the NSW Government , including through the mandates directing when and where face masks were to be worn.   A recent presidential member decision in the Personal Injury Commission (PIC) confirmed a certificate of determination where the member had concluded that the public order enforcing the mandatory wearing of face masks was the main contributing factor to the exacerbation of a pre-existing injury, and this was NOT a work-related factor.

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