AR Conolly & Company’s Benchmark digest

To blog, you have to be able to write, type, and learn a new programme (WordPress in my case) but there is really only one trick to blogging, and that is finding what to write about efficiently.  I rely on various sources, most of which I will keep under my hat, but the best is a daily email put out for free by a Sydney specialist insurance litigation firm, AR Conolly & Company, titled ‘Benchmark’.  Someone there reads or scans a lot of cases, and digests them usefully, adding to the court-provided keyword headnote, providing hyperlinks to the Austlii versions of the decisions, and, where appropriate, to related decisions such as, in the case of appeals, the decision at first instance.

I subscribe to the insurance newsletter.  ‘Insurance’ is broadly defined, and certainly includes professional negligence, and torts in general.  Often enough, decisions relating to procedure are included, as are decisions about lawyers which do not fit the professional negligence box.  The reach of the newsletter is one of its attractions: American, English and other countries’ decisions are included if sufficiently interesting, but only in that case, as are inferior courts and tribunals’ decisions. There are three other newsletters you can subscribe to: banking, construction, and an amalgam of all of the newsletters.

What’s even better is that those who put it together finish off with a bit of poetry or the biography of someone they admire, a welcome deviation from the oppressively boring presentation of most newsletters.

Here’s the page to plug your email address into if you want to subscribe.  By way of example of what you get, this is today’s entry in relation to what sounds like an interesting new decision from the Top End, and a professional negligence decision of the NSW District Court:

Territory Sheet Metal Pty Ltd & Others v Australia & New Zealand Banking Group Ltd [2009] NTSC 31
Supreme Court of the Northern Territory
Olsson J

Negligence – negligent misstatement – contracts – banker/customer relationship – standard of care & skill of a reasonable banker transacting its customer’s business – counter-claim – plea of contributory negligence – Law Reform (Miscellaneous Provisions) Act 2007 (NT) – plaintiffs alleging breach of ss51A & 52 Trade Practices Act 1974 (Cth), breach of common law duty of care, breach of fiduciary duty, negligent misstatement & breaches of contract – failure to exercise standard of care and skill of a reasonable banker in transacting its customer’s business & thus  breach of implied terms of contract – experts’ evidence – whether fiduciary relationship existed – claims made on basis of an alleged breach of fiduciary duty failed – His Honour found against plaintiffs on all causes of action save in respect of certain aspects of claim in contract – assessment of damages : judgment of Batt JA in National Australia Bank Limited v Nemur Varity Pty Ltd (2002) 4 VR 252 (see link below) – distinction between basis of assessment of damages for breach of common law duty of care in tort on the one hand & for breach of contract on the other – capital loss – a very lengthy, interesting judgment with comprehensive analysis of UK & Australian case law.

Territory Sheet Metal
National Australia Bank – decision Vic. Court of Appeal cited at para. 1527 of Olsson J’s judgment in Territory Sheet Metal v ANZ above – Phillip, Callaway & Batt JJA – judgment of Batt JA at para. 11.

From the District Court of New South Wales…

Kocev v Toh [2009] NSWDC 169
District Court of New South Wales
Hungerford ADCJ

Professional negligence – chiropractor – treatment by muscle stretch in lumbar spine – proceedings against second defendant settled in 2008 –  pre-existing spinal injury – whether treatment contraindicated -whether treatment in accordance with acceptable professional standards of competent chiropratic practice – defence of treatment given being widely accepted in Australia by peer professional opinion as competent professional practice – damages – effect of prior & likely future payments of workers compensation benefits – verdict for first defendant – if first defendant had been found liable then His Honour’s assessment of damages would have been $171,222.04.


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