Australia: Personal Injury Brief: Latest decisions – Kennedys


A roundup of recent court decisions raising issues
relating to package holidays, claims for interest brought in
England & Wales under a foreign regime, vicarious liability in
the context of sexual abuse, suspicion of fault, and the scope of
employment duties considered in recent dog walking

European Court of Justice rules on refunds regarding package

Union fédérale des consommateurs – Que
choisir (UFC – Que choisir), Consommation, logement et cadre de vie
(CLCV) v Premier ministre, Ministre de l’Économie, des
Finances et de la Relance, Case C-407/21


In this case, the European Court of Justice considered French
Legislation which permitted tour operators to provide a
‘voucher’ for any package holidays which were terminated
between 1 March to 15 September 2020 instead of a cash refund.
Firstly, the court stated that a valid ‘refund’ has to
comprise cash. Secondly, the court confirmed that the French
legislation, which releases a tour operator from their
reimbursement obligations under Article 12 of the EU Directive
2015/2302, is incompatible with EU law.

The court also clarified that EU Member States cannot claim
reliance on ‘force majeure’ in the context of a situation
such as a global health crisis to adopt legislation which deviates
from EU law.

This judgment reiterates the emphasis placed on consumer
protection in relation to package travel arrangements in EU Member
States. In the event of any future ‘unavoidable and
extraordinary circumstances’ such as another global pandemic,
tour operators will need to be prepared for the possibility of
having to issue a high volume of refunds to customers and ensure
compliance with EU consumer protection rights. Furthermore,
individual governments within EU Member States will also have to
ensure that any national legislation drafted is compliant with
relevant EU Directives.

Contact: Claire Mulligan

Clarity provided on claims for interest brought in England
& Wales under a foreign regime

Nicholls v Mapfre and Woodward v Mapfre

For years, the issue of whether claims for interest brought
under Rome II should be determined by reference to the law of the
lex fori (English) law, has created a tension between defendants
and claimants, particularly where the law applicable to the
assessment of liability and quantum is not the law of England and

In this case, the judges at first instance held that interest
was a matter of procedure. Mr Justice Martin Spencer, however,
overturned these decisions concluding that despite the judges at
first instance awarding the correct amounts, the reasoning behind
the awards was incorrect. In his view, interest was a substantive
rather than procedural and it was not legitimate for the judges at
first instance to give effect to Spanish law provisions intended to
operate in a different procedural environment for the purpose of
awarding penal rates as part of their discretion in English

We expect that the divisive issue of claims for interest will
continue to be the subject of litigation in the near future and
possibly be hashed out in the Court of Appeal or Supreme Court.
From a practical perspective, these cases demonstrate that it is
vital for insurers and solicitors to proactively manage cases by
setting accurate reserves and making early interim payments with a
view to achieving settlement at an early stage.

Contact: Rachel Moore

Related item: Spanish penalty interest – the saga

Vicarious liability explored in the context of sexual

Trustees of the Barry Congregation of Jehovah’s
Witnesses (Appellant) v BXB (Respondent)


Following the Court of Appeal’s decision in March 2021 which
stood as a further example of a faith-based establishment being
caught by the extended principle of vicarious liability, the
Supreme Court has clarified the position by allowing the
defendant’s appeal. The Supreme Court confirmed that the
Trustees of the Barry Congregation of Jehovah’s Witnesses was
not vicariously liable for the actions of MS.

By way of background, MS was known to BXB through her
husband’s work and their friendship continued through their
involvement with the congregation. On 30 April 1990, BXB, her
husband, MS and his wife were involved in door-to-door
evangelising. There followed a pub lunch were MS drank heavily and
argued with his wife. The families returned to MS’ home where
he raped BXB.

The court redefined the well-established two-stage test, both
stages of which must be satisfied in order to establish vicarious
liability. Stage one considers whether the relationship between the
defendant and tortfeasor is one of employment or akin to
employment. Stage two is the ‘close connection’ test and
considers whether the wrongful conduct was so closely connected
with the acts that the tortfeasor was authorised to do, so as to
make it fairly and properly regarded as being done while acting in
the course of their employment or quasi employment.

Whilst the Supreme Court agreed with the lower courts that the
stage one test was satisfied given that MS’ relationship with
the congregation was one akin to employment, the Court was not
satisfied with the decision reached in relation to stage two. They
found that the lower courts had taken irrelevant factors into
account when analysing whether there was the requisite close
connection, including the role of MS’ father in encouraging BXB
to support MS and the failure of the congregation to condemn
inappropriate behaviour displayed by MS against other members. The
tortious conduct which formed the subject matter of the claim could
not, in the Supreme Court’s judgment be fairly and properly
regarded as being done in the course of MS’ position as an

Contacts: Louise Bedford and Dan Couldrey

Related item: Supreme Court retreats from seemingly extended
principles of vicarious liability

Suspicion of fault is not sufficient to prove negligence

Karlevski v Vicinity Centres PM Pty Ltd &

The County Court of Victoria in Australia has affirmed that the
duty of care owed to plaintiffs in personal injury actions is not a
guarantee of safety. Even with reasonable care, bad things
sometimes happen to good people.

In this case, the plaintiff slipped on some water and fell in
Northland Shopping Centre in Melbourne and, as a result, suffered
injury to her right knee. She brought proceedings in negligence
against the manager of the shopping centre and its contracted

There was no dispute as to the plaintiff’s injuries and it
was accepted that she had slipped on water. However, despite CCTV
footage, there was no direct evidence regarding the source of the
water spillage, or when the spillage occurred. These issues
remained at large during the running of the trial, with the
plaintiff alleging that the source of the spillage was a roof leak
and that the defendants’ respective response to the roof leak
was inadequate.

The relevant question for the judge was whether an appropriate
path of inferential reasoning supported a conclusion, on the
balance of probabilities, that there was sufficient rain to cause
the roof to leak. On the evidence, including that there were no
recorded roof leaks in the incident location prior to or since the
incident, the judge found that to draw a conclusion that there was
sufficient rain to cause a roof leak at the incident location at
the given time would involve impermissible speculation.

The judge considered this case to be a clear example of the
plaintiff proceeding on the supposition that her injury was caused
by someone’s fault, when, on the evidence, it was not.
Ultimately, the judge dismissed the plaintiff’s claim.

Contacts: Michael Kavanagh and Jasmine Sandhu

Related item: Bad things sometimes happen to good people

The scope of employment duties considered in recent dog walking

Slater v McNelis [28.03.23]

In this Scottish case, the notion of what falls within the scope
of employment was considered by the court.

By way of background, the pursuer was employed at the
defender’s Holiday Park at the time of her accident on 20 July
2018. The Park was operated by two partners, one being John Wrigley
(now deceased) who had primary responsibility over the holiday park
who owned a dog called Khaleesi.

The pursuer attended the office and took Khaleesi out for a walk
at a nearby dog park, as she had on two previous occasions. The dog
was wearing a “Halti” collar as she was known to pull and
could be easily spooked. Khaleesi suddenly bolted, causing the
pursuer to fall onto her back and sustain a wedge fracture to her
T12 vertebra.

The sheriff concluded that liability could not be established as
any walking of Khaleesi, or the other dogs present at the park by
employees was undertaken voluntarily and crucially, not on the
instruction of Mr Wrigley.

It was held that the pursuer had failed to prove she was
instructed by her employer to walk Khaleesi and accordingly, the
case failed. As such, it is important for employers to be mindful
when giving instructions that there is a risk of a duty of care
being created. In this instance, given the nature of the task and
absence of direct instructions led to the court concluding that no
duty had been in the circumstances.

Contact: Tim Lennox

Related item: Taking employer’s liability for a

Read other items in Personal Injury Brief – July 2023

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