October 2006 - Lecture series a fitting tribute
The Geoff Masel memorial lecture series is in progress around the nation and has been well received in branches presenter Tony Scotford has visited so far.
I thank Mr Scotford, an Ebsworth & Ebsworth senior partner, for agreeing to deliver the lecture series, “Walking the tightrope between acting for insurers and insureds”. It is a fitting tribute to Mr Masel, who made an immense contribution to insurance law and AILA.
AILA and NZILA plan a combined conference in Christchurch on September 19-21, 2007. I urge members to mark their diaries now and attend the second joint conference. The theme is “The ties that bind”. More details will be available soon.
The organising committee is chaired by NZILA president Christine Meechan, with fellow New Zealanders Richard Johnstone and Mark Dennett and AILA representatives Michael Gill, Michael McKenna and me.
The Sydney conference is fast approaching. If you have not yet registered, do so now, as it promises to be an excellent event.
There have been some interesting outcomes in the courts of late. A High Court decision, Coote v Forestry Tasmania 26/2006, has expanded the common law duty of care for statutory authorities. The High Court reinstated an order for Forestry Tasmania (FT) to pay damages to a tree feller who became a paraplegic when a branch from an unfelled tree fell on his head.
Graham Coote claimed a senior FT officer had instructed him not to fell a tree he normally would have, because it was a pulp tree not a sawlog tree. Had it not been for those directions, he would have felled the pulp tree first.
FT denied the claim. It said Coote was able to fell trees if he thought they were too dangerous to remain standing and the incident resulted from an error of judgement on his part.
In 2001, Coote brought an action in the Tasmanian Supreme Court claiming damages for negligence from several parties, including FT. Justice Alan Blow found FT was negligent in failing to instruct Coote “to fell first any trees that potentially posed a danger ... and, through supervision, to ensure he did so”. But the Full Court allowed FT’s appeal.
The High Court found there was no error in Justice Blow’s reasoning and the Full Court erred in disturbing his orders. The direction to retain pulp trees that would only be brushed by a falling sawlog tree was negligent because any tree brushed by another was a source of danger.
In Sweeney v Boylan Nominees Pty Ltd 19/2006, the High Court reaffirmed that a principal would not ordinarily be held responsible for the actions of an independent contractor.
Maria Sweeney claimed she was injured when a fridge door at a Sydney service station came off its hinges as she was opening it and hit her on the head. Earlier that day Boylan Nominees had arranged for a repairman to service the door, as it has been reported as faulty.
The High Court, with Justice Michael Kirby dissenting, found there was a distinction between employees, for whose conduct the employer will generally be vicariously liable, and independent contractors, for whose conduct the person engaging the contractor will generally not be vicariously liable.
The decision is unfortunate in that it will increase costs significantly because it illustrates that a plaintiff cannot just sue one tortfeasor, but must sue anyone with potential liability. The High Court rejected Sweeney’s argument on the basis she did not sue the right person.
The law of rescue, while always interesting, receives little judicial attention. However, in a Tasmanian case, the Full Court has upheld a decision of the Supreme Court that Tasmanian Sea Fisheries was not liable for a fisherman’s injuries.
Paul Morton said the injuries were sustained when he was returning from “rescuing” a government-owned fishing patrol vessel, the D’Entrecasteaux.
Morton alleged he received two calls from fisheries inspector David Batchler, who said the D’Entrecasteaux’s engines would not start and it was “in imminent danger of being washed ashore”. Morton responded to the call and helped restart the D’Entrecasteaux engines. He said he was injured in “gale force winds”, which damaged his boat, after he left the D’Entrecasteaux to check his cray pots.
Batchler said he did not suggest there was an emergency nor that the D’Entrecasteaux was in imminent danger. He claimed Morton was a “volunteer, not a rescuer”. Morton appealed to the Full Court of the Tasmanian Supreme Court after a jury rejected his claim. The Full Court found it would “amount to a miscarriage of justice to grant [Morton] a new trial”. (Morton v State of Tasmania TSC 62/2006)