[2000] SASC 331
HILLIER & CARNEY V LUCAS
Full Court: Duggan, Lander and Bleby JJ
DUGGAN J. I agree that the appeal should be allowed for the reasons given by Lander J.
I also agree with the orders proposed by Lander J.
LANDER J.
The Parties
The appellants were the defendants in the court below. The respondent was the plaintiff. I shall refer to the parties as plaintiff and defendants.
The plaintiff brought proceedings in May 1994 against the defendants claiming damages for personal injuries said to have been occasioned to the plaintiff by reason of the professional negligence of the defendants. The first defendant is an orthopaedic surgeon and the second defendant is a neurosurgeon.
Whilst these proceedings have been brought in the name of the plaintiff they were brought at the instigation of Comcare Australia (“Comcare”), which is a statutory authority established pursuant to s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Commonwealth) (“the Act”).
Paragraph 2 of the plaintiff’s Statement of Claim (which is not admitted in the defendants’ defence) asserts:
“2..... These proceedings are brought by the plaintiff in his own right and for his own benefit and in the name of the Plaintiff by Comcare Australia pursuant to Section 50 of the Safety Rehabilitation and Compensation Act 1988.”
Section 50 of the Safety, Rehabilitation and Compensation Act 1998 (Commonwealth) relevantly provides:
“(1) Where:
(a) an amount of compensation under this Act:
(i)is paid to an employee in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee; or
(ii)is paid for the benefit of a dependant of a deceased employee in respect of an injury that resulted in the death of the employee;
(b)the injury, loss, damage or death occurred in circumstances that appear to create a legal liability in a person to pay damages in respect of the injury, loss, damage or death; and
(c)proceedings against that person for the purpose of recovering such damages have not been instituted by the employee or by or for the benefit of the dependant, or have been so instituted but have been discontinued or have not been properly prosecuted;
.................. Comcare may institute proceedings or fresh proceedings against the person in the name of the employee or dependant for the recovery of damages in respect of the injury, loss, damage or death or may take over the conduct of the proceedings, as the case requires.”
Initially the plaintiff was represented by the Australian Government’s solicitor and counsel, Mr R Cameron and Mr P Allen. During the trial the plaintiff admitted that he had told lies in his examination-in-chief about matters relating to his condition and capacity.
The learned Trial Judge warned him about matters of self incrimination and after that time he refused to answer some questions on the ground that the answers might tend to incriminate him. The Trial Judge then made an order that the plaintiff should be separately represented because…
Continue reading Hillier & Carney v Lucas
Sign in free to access the full text
- AGLC
- Hillier & Carney v Lucas [2000] SASC 331
- Case
- [2000] SASC 331
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: DUGGAN J, BLEBY J
Full text does not contain this section.