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Occupier liable for fall in a puddle

JULY 2018, Nicole Norris

Monash University were found liable for injuries sustained by a pedestrian who fell in a puddle crossing a median strip. The Court of Appeal dismissed its appeal. The trial judge found the Defendant occupier liable in negligence for failing to maintain and repair a minor depression in circumstances where the Defendant had engaged a competent maintenance contractor, Programmed Maintenance Services (“PMS”) to maintain the relevant area. The occupier failed in its claim for contribution against PMS.

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Employer not liable for employee’s death operating a tractor while intoxicated

JUNE 2018, Carla Downes

In Puleio v Olam Orchards Australia Pty Ltd [2018] VSC 109, a widow failed to establish liability for nervous shock arising out of her husband’s death at work.  Her husband died when a tractor, being operated by him, rolled over him whilst he was performing work duties for the orchard (where he was staying overnight), although this was unknown to his employer.  He had failed to apply the handbrake whilst checking the slasher.  He was also intoxicated at the time. The court held the employer owed no duty to prevent his consumption of alcohol after hours or provide continual training about matters of basic common sense, like the application of a handbrake.  The court held the employer had not breached its duty of care and the case was dismissed.    

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no proof, no payment

 MARCH 2018, Daniel Unger

Interesting recent decision that reinforces the initial onus is on an insured to prove they have suffered a loss when lodging an insurance claim.  Case also deals with the Coincidence Rule outlined in section 98 the Evidence Act 2008 which is rarely considered in civil cases.

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watch the fence – the perils of aussie rules football

SEPTEMBER 2017, Jonathan Cutler

We acted for Bayside City Council defending a claim of a young footballer who suffered a severe knee injury when he collided with a wire cyclone fence during a game of AFL football. The central issue in the case was whether the boundary lines painted by the Football Club (which was also a Defendant) were too close to the surrounding fence. Despite not being able to call any direct evidence in relation to whether the distance was less than the minimum 3 metres required by the applicable sporting guidelines, the Plaintiff succeeded at first instance based on an aerial “Near Map” photograph. On appeal, the Court accepted the trial judge erred by relying on the aerial photograph, but still found for the Plaintiff after conducting a review of the evidence in the lower Court, despite the circumstantial nature of his claim.

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