Date: Fri, 13 Oct 2006 10:33:51 +1000

From: Neil Foster

Subject: Employer's claim for injury to employee

Dear Colleagues;

What is the citation for Kapfunde? I know I could look it up online somewhere but why not ask someone who knows ...?

I want to add something brief to my previous post. Discussions with another colleague have revealed that I missed the bleeding obvious in my previous post, which is that members of the High Court of Australia in Cattanach (2003) 215 CLR 1 (a joint action by husband and wife for the costs of raising a child born after a failed sterilisation) have indeed already addressed the question of whether a medical practitioner can owe a duty of care to someone who is not their patient in respect of economic loss. My only excuse is that they were in the minority! But I have always thought that the decision of the majority in Cattanach was wrong, and that Gleeson CJ's argument that the case was one of economic loss is unanswerable - after all, the only other way of analysing the case is to regard pregnancy per se as a personal injury, which is just silly. And as he points out the majority view effectively ignores the inconvenient truth that the husband was

However, a moment's reflection shows that even if the minority view of Cattanach were accepted that does not automatically preclude an action in tort by the club against the doctor here. Gleeson CJ discusses a number of the matters put forward in Perre v Apand on the issue of whether there ought to be a new duty of care to avoid causing economic loss at [31]-[38] in Cattanach. They include matters such as indeterminacy of liability (not so relevant here), and problems of legal coherence. On the last point one could argue that given the "contract-like" relationship here (if there is no actual contract) it would be better to allocate loss on some other basis than implying a duty by the doctor to look out for the interests of the club. But one could equally argue that given that very "contract-like" relationship it is not a very great step for the doctor to be required to do so - after all, he knew that his money was coming from the club (or their insurerers).

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 13/10/06 3:28 >>>

I post for Ken Oliphant:

 

Out today from the House of Lords: Jameel v Wall Street Journal Europe [2006] UKHL 44.

Held, (1) the rule entitling a trading corporation to sue in libel when it can prove no financial loss is not an unreasonable restraint on the right to publish protected by article 10 ECHR and did not, for that or any other reason, have to be revised. Baroness Hale (dissenting on this issue) would have amended the law to require the company to show that the libel was "likely to cause it financial loss".

(2) the "Reynolds" qualified privilege applying to newspaper reports of matters of public interest (or "the Reynolds public interest defence": at [46] per Lord Hoffmann) should not be withheld simply because the newspaper failed to delay publication of its allegation to enable the claimant to comment. (The paper had reported that the claimant "could not be reached for comment".)

I've only had time for a skim read, so no guarantees I've got everything correct!

One thing that struck me, though, is that the HL has yet again decided a human rights case with absolutely no mention of the argument that the Convention rights have horizontal effect attributable to the court's duty as a public body to act compatibly with those rights (HRA s 6(1) and (3)). Does anyone else find this as puzzling as I do?

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