Varga v Galea [2011] NSWCA 76

Judgment date: 4 April 2011

McColl JA (Beazley JA and Handley AJA agreeing):

"Evidence of the practicability of a proposed alternative course or safeguard "is essential except to the extent that [it is] within the common knowledge of the ordinary man": Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 (at 293) per Barwick CJ; see also Neill (at 369 - 370); Vozza (at 321 - 322). A mere allegation that a precaution is practicable is insufficient where the evaluation of whether or not the precaution is practicable involves issues of technical knowledge and experience: Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 (at [45]) per McHugh J, citing Bressington v Commissioner for Railways (NSW) [1947] HCA 47; (1947) 75 CLR 339 (at 348) per Latham CJ. Absent such evidence, or an ability to have recourse to common knowledge, it will merely be a matter of conjecture whether suggested precautions would be practicable or not: Neill (at 365) per Kitto J. "

Circumstances in which court will order joinder of parties under r 6.19 of the Uniform Civil Procedure Rules 2005

CGU Insurance Ltd v Bazem Pty Ltd [2011] NSWCA 81

Macfarlan JA (Beazley JA and Hodgson JA agreeing)

27 The power given by these concluding words of UCPR r 6.19(1) is not in my view available only where the conditions stated in r 6.19(1)(a) and (b) are satisfied. These conditions are applicable where a party commences proceedings: the party may join more than one defendant as of right if the conditions are satisfied. There is no reason however why the Court's discretion to grant leave for the joinder of defendants should be so limited when the power granted to the Court is expressed in unqualified terms.

28 Nor in my view should it be regarded as otherwise limited in the manner that the Insurer contends it should. As the High Court said in Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404, "[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words" (at 421).

29 As the power here is expressed in unqualified terms, I do not consider that there is any sound basis for the Insurer's submission that at least one of a limited number of factors must be present before the Court's power to grant leave under this provision arises. Contrary to the Insurer's submissions, it is not necessary that there be a factor "along the lines of ... a Corporations Act priority issue" or "an issue of insolvency or potential insolvency" of the Insured (Appeal Transcript p 8), as there was in the Ashmere decisions. It is quite possible that in any particular case considerations other than these might move the Court to grant leave under this provision. For example, the facts in the present case that the Insurer had denied liability, that the Architect had not itself commenced proceedings to enforce the Policy and that the Insurer did not contend that there was no reasonable basis for an allegation that it was liable to grant indemnity under the Policy might have provided the basis for a proper exercise of discretion. Certainly the power to grant leave existed in such circumstances. The development of guidelines (of the type to which Mason CJ referred in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 541) for the exercise of the discretion conferred by the rule might encourage or discourage the exercise, in the circumstances that I have described, of the power to grant leave. But that is a different issue from one of whether the power to grant leave exists.

Principles in determining contributory negligence

Reed v Warburton [2011] NSWCA 98

Judgment date: 20 April 2011

Basten JA (Hodgson JA and Handley AJA agreeing):

"This is to be determined in accordance with the principles set out in s 5R of the Civil Liability Act . Although the appellant owed no duty to himself, in a legal sense, to care for his own property, the Act requires that the principles applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent "in failing to take precautions against the risk of that harm": s 5R(1). Again, it is appropriate to consider the conduct of the appellant generally, without being unduly constrained by reference to taking "precautions". It is also necessary to apply the standard of a reasonable person "in the position of" the appellant. As emphasised by his senior counsel, that involved consideration of his knowledge and matters of which he ought reasonably to have been aware, as an owner/builder, but he should not be treated as having the experience or knowledge of a licensed plumber."

Thrombosis not an "accident" under a personal accident policy

Pass v Gerling Australia Insurance Company Pty Ltd [2011] WASCA 93

Judgment date: 13 April 2011

Mazza J (Pullin JA and Newnes JA agreeing):

"The usual consequence of a progressive illness, when it occurs suddenly and unexpectedly to the person who suffers from the disease, is not an accident."