Damages for ‘loss of use’ of a chattel has for many years been an unsettled area of the law, pleaded inconsistently by plaintiffs and, at times, miscategorised by the Courts resulting in conflicting judgments. The issue is particularly important in claims for damages involving replacement car hire when a person’s car is damaged by the […]
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ACCC alleges SmileDirectClub misled consumers regarding health insurance reimbursements for clear teeth aligners
On 12 July 2021, the Australian Competition & Consumer Commission (ACCC) instituted proceedings in the Federal Court of Australia against SmileDirectClub Aus Pty Ltd and its US parent company, SmileDirectClub LLC (SmileDirectClub), alleging they had breached the Australian Consumer Law (ACL). The ACCC claims that between May 2019 and October 2020, SmileDirectClub breached section 18 […]
Commercial Occupiers: What is expected of them to keep premises safe?
Carnemolla v Arcadia Funds Management Ltd  NSWCA 308 Key takeaways An occupier of commercial premises does not have a duty to keep a floor dry at all times, but rather to take reasonable steps to minimise the risk of harm by ensuring an adequate inspection and cleaning system is in place. The plaintiff bears […]
Waivers and extreme sports
Marks v Skydive Holdings Pty Ltd  VSC 21 Key takeaways Where an organisation wishes to rely on a waiver to bar all future claims against it, the waiver must be brought to the attention of the party in a sufficient manner. It is sensible to force a party to review and agree to the […]
Are all activities performed in a gym recreational? The court says no.
Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre  NSWDC 264 Background On 4 February 2016, a gym member twisted her back while clearing weights strewn about the floor of the gym to make space for her exercise regime. She sustained a serious spinal injury which has resulted in ongoing […]
In accommodation settings, does ‘slippery when wet’ mean liable?
Nikolich v Webb  WASCA 169 (21 October 2020) Key takeaways Due to the operation of s 50 of the Civil Liability Act 2002 (WA), there is no duty to warn of an obvious risk. The risk of slipping and falling on a wet bathroom floor where the floor is not uniquely slippery, is an […]
Listen to the experts: Chatoor v Health Care Complaints Commission of NSW  NSWCA 111
The NSW Court of Appeal (“NSWCA”) recently overturned a decision of the NSW Civil and Administrative Tribunal (“the Tribunal”) in relation to two complaints concerning Dr Roger Chatoor (a cardiologist). Dr Chatoor appealed the Tribunal’s findings of unsatisfactory professional conduct on the primary basis that it had failed to correctly apply the relevant statutory test […]
Swearing of affidavits across Australia – what’s required during the COVID-19 pandemic?
Key takeaways In some States and Federally, witnessing and attesting affidavits can be done remotely. If a sworn affidavit is not possible, an unsworn affidavit may be accepted by the Court. If an unsworn affidavit is relied upon, a sworn or affirmed affidavit must be filed with the Court when circumstances allow. Legislation and Regulations […]
How will Liability Insurance respond to COVID-19?
Key takeaways Insurer and reinsurer responses to COVID-19 are continuing to evolve. Critical to liability claims is likely to be the timing and content of government directives and an insured’s response to them. An Insured will need to defend their actions in preventing the spread of the disease. The number and types of claims to […]
Emerging Insurance Issues from COVID-19
Key takeaways A brief insight into COVID-19 insurance implications Business interruption and liability coverage This article is the first in a series of updates on the insurance issues and implications emerging from the COVID-19 pandemic. The Insurance Council of Australia (ICA) has declared COVID-19 an official insurance catastrophe. What is clear is that the consequences […]
Appeal softens the blow for defendant following fall from ‘aerial sling’
Key takeaways Important case for personal fitness instructors and other fitness operators. Harm reduction measures are important, even where no prior accidents have occurred. A Plaintiff must show a reasonably practicable precaution that could have been taken to avoid the risk of injury. Fitness instructors need to give clear instructions and insist on the use […]