Res Ipsa Loquitur

In this episode we look at Roberts v Shimmin [2024] NSWDC 171, a recent successful medical negligence proceeding brought against a treating orthopaedic surgeon in respect of a negligently-performed total knee replacement surgery peformed in 2012 on a Plaintiff with no knee cap which had been removed years earlier in a patellectomy in 1982.

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In this episode we consider the case of Belgrave Heights v Moore [2020] VSCA 240, a case in which the Victorian Court of Appeal considered whether, when there is injury suffered in the course of employment to a worker while driving a motor vehicle in the State of Victoria, the application for a "Serious Injury" certificate giving permission to commence damages proceedings is governed by the 'gateway' requirements of section 93 of the Transport Accident Act 1986 (Vic) or the applicable Workcover legislation, here s134AB of the Accident Compensation Act 1985 (Vic).

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In this episode we consider the case of Mt Owen v Parkes [2023] NSWCA 77, a case where the NSW Court of Appeal upheld a first instance decision which held a host employer was vicariously liable for the tortious conduct of a host employee, the Court satisfied there had been on the evidence at trial an effective shift or transfer of vicarious liability from the labour hire employer to the host.

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In this episode we consider the case of Noureddine v Adlard [2022] VSC 719, a judicial review application of a Medical Panel determination decided by Walker JA sitting at first instance in the Victorian Supreme Court which involved a question as to whether, when a Medical Panel requested to provide its binding medical opinions to referred medical questions, undertakes its own independent research and fails to provide the product of that research to the parties for comment or submissions before rendering its opinion, that failure constitutes a breach of its procedural fairness obligations owed to the parties.

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In this episode we consider the recent High Court of Australia case of Kozarov v State of Victoria [2022] HCA 12, which considered the circumstances in which employers will owe a duty to take reasonable care against the risk of psychological injury to its employees in employment, in the context of this case involving Ms Kozarov, a former prosecutor/solicitor working in the sexual offences unit of the Office of Public Prosecutions who suffered PTSD and major depressive disorder in employment by vicarious trauma. In doing so, had occasion to consider what the Court had previously said on the issue in Koehler v Cerebos (Australia).

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In this episode we consider the decision of the NSW Court of Appeal in Faucett v St George Bank [2003] NSWCA 43 - a case in which the Court overturned a first instance verdict in the Defendant bank's favour, finding liability to its employee bank teller for psychological injuries sustained in the course of her employment arising from an armed robbery at the bank, the bank's security and safety systems found to be lacking and causative of her injuries, loss and damage. A rare and therefore important case where a Modbury Triangle-type argument succeeded in a Plaintiff's favour

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In this episode, we consider the decision of the Victorian Court of Appeal in Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328, a case which considered the proper approach and principles to apply in exercising discretion under recently-introduced legislative provisions to set aside prior settlement agreements entered into for historical child abuse claims - there, a settlement agreement pursuant to which WCB previously resolved his damages claim in 1996, for sexual abuse at the hands of a priest which occurred from 1977-1980, for the modest sum of $32,500.

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In this episode we consider the recent case of the NSW Court of Appeal in Bondi Beach Foods v Chadwick [2023] NSWCA 265, which considered the liability of the owner/operator of a licensed venue and a security contractor for injuries sustained to a patron caused by an altercation by another intoxicated patron. The case also considered whether the Plaintiff himself was contributorily negligent for escalating the situation with the assailant.

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In this episode we consider the case decided last week by the Victorian Court of Appeal in Connelly v TAC [2024] VSCA 20, an important case where the Court overturned the longstanding authority from 1997 of Mobilio v Balliotis which held that the standard of appellate review of "serious injury" determinations of the County Court of Victoria was the so-called House v King standard. The case also provides an important recent example of the Court reversing the determining, finding that the Plaintiff's injury was "serious", overturning the first instance decision.

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In this episode we consider the case of Biggs v O'Connor [2021] VSC 826, a case decided by Justice Keogh of the Victorian Supreme Court, which considered the liability of a motorcycle rider for damages for negligently inflicted psychiatric injury to a secondary victim, here the spouse of the deceased motorcyclist's passenger who died as a result of an accident caused by the negligent riding and control of the motorcycle. This case considered the effect of intoxication on the question of duty and the Volenti defence, and whether the duty owed to the secondary victim was independent of, and not derived from, the duty owed to the primary victim.

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