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AF Concrete Pumping Pty Ltd v Ryan

AF Concrete Pumping Pty Ltd v Ryan

Case [2014] NSWCA 346 10 October 2014

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AF Concrete Pumping Pty Ltd v Ryan & Ors [2014] NSWCA 346
Hearing dates: 23 May 2014
Decision date: 10 October 2014
Before: Meagher JA at [1];
Leeming JA at [97];
Sackville AJA at [98]
Decision:
(1) Grant leave to the appellant to appeal from costs order 1 made on 14 March 2013.
(2) Appeal allowed in part.
(3) Set aside order 1 made on 14 March 2013.
(4) Order the first defendant (appellant) to pay the costs of the first respondent and Reliance Pools International Pty Ltd of the proceedings before the primary judge.
(5) Appeal otherwise dismissed.
(6) Dismiss the appellant's summons seeking leave to appeal as against the third respondent.
(7) Appellant pay 90% of the costs of the first respondent of the appeal.
(8) Appellant pay the costs of the second and third respondents of the appeal and of the third respondent of the summons seeking leave to appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
WORKERS' COMPENSATION - employer's non-delegable duty of care to employee - where employer an independent contractor and employee injured by negligence of another independent contractor - whether employer failed to provide a safe system of work - whether employer liable for independent contractor's negligence

WORKERS' COMPENSATION - calculation of degree of permanent impairment - expert evidence - whether assessment made in accordance with WorkCover Guides - Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 322 - Workers Compensation Act 1987 (NSW) ss 151Z(1)(d), (2)(c), (d), (e)(i)
COSTS - whether leave required to appeal against costs order related to substantive grounds - Supreme Court Act 1970 (NSW) s 101(2)(c) - exercise of discretion - indemnity costs - whether correspondence constituted Calderbank offer - unreasonable conduct leading to joinder of successful defendant - unreasonable conduct leading to other defendant's unsuccessful cross-claim
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(1)
Supreme Court Act 1970 (NSW), ss 76(1), 101(2)(c)
Workers Compensation Act 1987 (NSW), ss 151H, 151Z(1), 151Z(2)(c), (d), (e)(i)
Workplace Injury Management and Workers Compensation Act 1998 (NSW), Ch 7, Pt 7, ss 322(1), 322(3), 326
Cases Cited: ACQ v Cook (No 2) [2008] NSWCA 306
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424
Calderbank v Calderbank [1976] Fam 93
CG Maloney Pty Ltd v Noon [2011] NSWCA 397
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Czatyrko v Edith Cowan University [2005] HCA 14; 214 ALR 349
Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354
Elliott v Bickerstaff [1999] NSWCA 453;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AF Concrete Pumping Pty Ltd v Ryan

Details

AGLC: AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346
Case: [2014] NSWCA 346
Decision Date: 10 October 2014

CaseChat Overview and Summary

The case of *AF Concrete Pumping Pty Ltd v Ryan* concerned an appeal to the Court of Appeal of New South Wales. The appellant, AF Concrete Pumping Pty Ltd, was the employer of the first respondent, Mr. Ryan, who suffered an injury while working. The dispute arose from Mr. Ryan's claim for workers' compensation, specifically concerning the extent of his permanent impairment and the appellant's liability, including its responsibility for the negligence of another independent contractor on the worksite.

The primary legal issues before the Court of Appeal were whether the appellant, as an employer, had breached its non-delegable duty of care to provide a safe system of work, and whether it was liable for the negligence of another independent contractor. Additionally, the court was required to determine the correct method for calculating the degree of Mr. Ryan's permanent impairment in accordance with the relevant New South Wales legislation and the WorkCover Guides. The appeal also involved a challenge to a costs order made by the primary judge, including whether leave was required to appeal that order and whether the appellant's conduct warranted indemnity costs.

The Court of Appeal considered the appellant's non-delegable duty of care, noting that an employer remains responsible for the safety of its employees even when engaging independent contractors. The court examined the evidence regarding the system of work and the actions of the other independent contractor to assess whether the appellant had failed in its duty. Furthermore, the court analysed the expert evidence presented concerning the calculation of permanent impairment, applying the principles outlined in the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) and the *Workers Compensation Act 1987* (NSW). The court also addressed the costs appeal, considering the discretion of the primary judge and the appellant's conduct in the proceedings.

The Court of Appeal granted leave to appeal from a costs order made on 14 March 2013 and allowed the appeal in part, setting aside that order. The appellant was ordered to pay the costs of the first respondent and Reliance Pools International Pty Ltd of the proceedings before the primary judge. The appeal was otherwise dismissed, and the appellant was ordered to pay a significant proportion of the costs of the respondents for the appeal and related summonses.

Orders

Orders of the court

(1) Grant leave to the appellant to appeal from costs order 1 made on 14 March 2013.

(2) Appeal allowed in part.

(3) Set aside order 1 made on 14 March 2013.

(4) Order the first defendant (appellant) to pay the costs of the first respondent and Reliance Pools International Pty Ltd of the proceedings before the primary judge.

(5) Appeal otherwise dismissed.

(6) Dismiss the appellant's summons seeking leave to appeal as against the third respondent.

(7) Appellant pay 90% of the costs of the first respondent of the appeal.

(8) Appellant pay the costs of the second and third respondents of the appeal and of the third respondent of the summons seeking leave to appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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

Full text does not contain this section.

Citations

AGLC Citation

AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346

Most Recent Citation

Blackmore Design Group Pty Limited v Manly Council [2014] NSWLEC 164

Cases citing this decision · 5 of 5 shown

DAC Finance (NSW/Qld) Pty Ltd v Cox
[2024] NSWCA 170 Para 19

…an his or her employer (such as an occupier of premises or a manufacturer of a defective product) was explained in AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346 at [41]-[45]. There is an obvious tension between an assessment of permanent impairment of 8% and the injury found by the primary judge resulting in…
Housman v Camuglia
[2021] NSWCA 106 Para 44

…Pty Ltd (rec and mgr apptd) v Campbell Street Theatre Pty Ltd (2011) 80 NSWLR 652; [2011] NSWCA 128 at [129] and AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346 at [72]. In Sahade v Bischoff [2015] NSWCA 418 at [166] it was assumed, in the absence of argument, that leave was unnecessary. However, there are deci…
Coffs Harbour City Council v Polglase
[2020] NSWCA 265 Para 179

…94 but may not be correct, as explained in C G Maloney Pty Ltd v Noon [2011] NSWCA 397 at [104]-[106] and noted in AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346 at [72]. It is appropriate to follow the same course as was adopted in C G Maloney Pty Ltd v Noon , and grant leave to the Council and the Trust to a…
Hawes v Dean
[2014] NSWCA 380 Para 7

…Meagher JA pointed out in AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346 at [72] that the question whether an appeal which includes substantive grounds as well as grounds relating to costs is, when the substantive grounds are determined against the appellant, an appeal "as to costs only" within s 101(2)(c) is…
Blackmore Design Group Pty Ltd v Manly Council
[2014] NSWLEC 164 Para 1

…clear that the fact of its non-acceptance may be deployed as a basis for seeking such a special costs order: AF Concrete Pumping Pty Ltd v Ryan & Ors [2014] NSWCA 346 at [74].…

View all 5 citing cases →

Cases cited in this decision · 20 of 20 shown

Stewart v ATCO Controls Pty Ltd (In Liq) (No 2)
[2014] HCA 31 Para 1

…: Whitney v Dream Developments Pty Ltd [2013] NSWCA 188; 84 NSWLR 311 at [43], [46], [47], [57]-[60]; Stewart v Atco Controls Pty Ltd (in liq) (No 2) [2014] HCA 31.…
St George Bank - a Division of Westpac Banking Corporation (formerly St George Bank Ltd) v Jin
[2013] NSWCA 306 Para 1

…relation to those costs does not appear to have been opposed. As Leeming JA noted in St George Bank - A Division of Westpac Banking Corporation v Jin [2013] NSWCA 306 at [16] by reference to Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 at [15], such an order may be made in circumstances where t…
Whitney v Dream Developments Pty Ltd
[2013] NSWCA 188 Para 1

…kes clear that the fact of its non-acceptance may be deployed as a basis for seeking such a special costs order: Whitney v Dream Developments Pty Ltd [2013] NSWCA 188; 84 NSWLR 311 at [43], [46], [47], [57]-[60]; Stewart v Atco Controls Pty Ltd (in liq) (No 2) [2014] HCA 31.…
Ryan v A F Concrete Pumping Pty Limited (No 2)
[2013] NSWSC 219 Para 1

…The primary judge then heard argument as to the costs of the proceedings and made orders on 14 March 2013: Ryan v AF Concrete Pumping Pty Ltd (No 2) [2013] NSWSC 219.…
Ryan v A F Concrete Pumping Pty Ltd
[2013] NSWSC 113 Para 1

…Concrete and Reliance Pools were not negligent, and that there was no contributory negligence by Mr Ryan: Jeffrey Ryan v AF Concrete Pumping Pty Ltd [2013] NSWSC 113. Judgments were entered which reflected those conclusions on liability. They included judgment for Mr Ryan against AF Concrete in the sum of $2,438,4…
Izzard v Dunbier Marine Products (NSW) Pty Ltd
[2012] NSWCA 132 Para 1

…ithout the benefits provided and constraints imposed by the procedural mechanisms contained in it: see Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 at [34], [41] (Basten JA), [116]-[121] (Macfarlan JA) and [141]-[148] (Barrett JA).…
C G Maloney Pty Ltd v Noon
[2011] NSWCA 397 Para 1

…onflicting decisions in other intermediate courts of appeal. A number of those decisions are referred to by Campbell JA in C G Maloney Pty Ltd v Noon [2011] NSWCA 397 at [104]. I propose to adopt the course that his Honour adopted in that case. I will address each of the grounds of appeal and in that context consid…
Leighton Contractors Pty Ltd v Fox
[2009] HCA 35 Para 1

…ts independent contractors, for the safety of its employees. In support of this proposition, reference was made to Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1.…
Council of the City of Liverpool v Turano (No 2)
[2009] NSWCA 176 Para 1

…orge Bank - A Division of Westpac Banking Corporation v Jin [2013] NSWCA 306 at [16] by reference to Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 at [15], such an order may be made in circumstances where there is "some conduct on the part of the unsuccessful defendant which would make it fair t…
ACQ v Cook (No 2)
[2008] NSWCA 306 Para 1

…". The relevant principles are referred to by Gibbs CJ in Gould v Vaggelas [1984] HCA 68; 157 CLR 215 at 229-230 and Campbell JA in ACQ v Cook (No 2) [2008] NSWCA 306 at [32]-[43].…
Czatyrko v Edith Cowan University
[2005] HCA 14 Para 1

…e to which an employer's breach of duty is to be determined are not controversial. They were stated by the Court in Czatyrko v Edith Cowan University [2005] HCA 14; 214 ALR 349 at [12]:…
Andar Transport Pty Ltd v Brambles Ltd
[2004] HCA 28 Para 1

…was also an employee of the company could not recover damages for breach of its duty of care as his employer: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 at [49]-[50].…
Elliott v Bickerstaff
[1999] NSWCA 453 Para 1

…r's failure to adopt such a system meant that the employer did not provide such a system. The point is explained by Giles JA in Elliott v Bickerstaff [1999] NSWCA 453; 48 NSWLR 214 at [75]:…
Rosniak v Government Insurance Office of NSW
[1998] HCATrans 78 Para 1

…oceedings in disregard of known facts: see Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234; Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 615-616 (Mason P); and Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354 at 358 in which false allegations of fact were made. In the judg…
Oshlack v Richmond River Council
[1998] HCA 11 Para 1

…cially in accordance with established principle and factors directly connected with the litigation" (per McHugh J in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at 96).…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801

…06 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 Calderbank v Calderbank [1976] Fam 93 CG Maloney Pty Ltd v Noon [2011] NSWCA 397 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Czatyrko v Edith Cowan University [2005] HCA 14; 214 ALR 349 Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354 Elliott v Bickerst…
Stevens v Brodribb Sawmilling Co Pty Ltd
[1986] HCA 1 Para 1

…ntractor of Uno, AF Concrete. The principles which apply in such circumstances are explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 at 47-48. In Leighton Contractors Pty Ltd at [21], having referred to those principles, the Court addressed the circumstances in which an…
Wentworth v Attorney-General (NSW)
[1984] HCA 70 Para 1

…r 2 was made in exercise of the power given by s 98(1) of the Civil Procedure Act 2005 (NSW). As the Court said in Wentworth v Attorney-General (NSW) [1984] HCA 70; 154 CLR 518 at 528 of the equivalent power in s 76(1) of the Supreme Court Act 1970 (NSW), that power confers "a wide discretion on the Court to dec…
Gould v Vaggelas
[1984] HCA 68 Para 1

…it fair to impose liability on it for the costs of the successful defendant". The relevant principles are referred to by Gibbs CJ in Gould v Vaggelas [1984] HCA 68; 157 CLR 215 at 229-230 and Campbell JA in ACQ v Cook (No 2) [2008] NSWCA 306 at [32]-[43].…
Kondis v State Transport Authority
[1984] HCA 61 Para 1

…ployee or contractor. For that reason, the position of the employer is as described by Mason J (as he then was) in Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 at 681:…

Legislation cited in this decision · 4

Workers Compensation Act 1987 (NSW)
151H, 151Z(1), 151Z(1)(d), 151Z(2)(c) 5 mentions (from Para 1)
Supreme Court Act 1970 (NSW)
101(2)(c), 76(1) 3 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
98(1) 2 mentions (from Para 1)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
322 2 mentions (from Para 1)

Medium Neutral Citation:	AF Concrete Pumping Pty Ltd v Ryan & Ors [2014] NSWCA 346
Hearing dates:	23 May 2014
Decision date:	10 October 2014
Before:	Meagher JA at [1]; Leeming JA at [97]; Sackville AJA at [98]
Decision:	(1) Grant leave to the appellant to appeal from costs order 1 made on 14 March 2013. (2) Appeal allowed in part. (3) Set aside order 1 made on 14 March 2013. (4) Order the first defendant (appellant) to pay the costs of the first respondent and Reliance Pools International Pty Ltd of the proceedings before the primary judge. (5) Appeal otherwise dismissed. (6) Dismiss the appellant's summons seeking leave to appeal as against the third respondent. (7) Appellant pay 90% of the costs of the first respondent of the appeal. (8) Appellant pay the costs of the second and third respondents of the appeal and of the third respondent of the summons seeking leave to appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	WORKERS' COMPENSATION - employer's non-delegable duty of care to employee - where employer an independent contractor and employee injured by negligence of another independent contractor - whether employer failed to provide a safe system of work - whether employer liable for independent contractor's negligence WORKERS' COMPENSATION - calculation of degree of permanent impairment - expert evidence - whether assessment made in accordance with WorkCover Guides - Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 322 - Workers Compensation Act 1987 (NSW) ss 151Z(1)(d), (2)(c), (d), (e)(i) COSTS - whether leave required to appeal against costs order related to substantive grounds - Supreme Court Act 1970 (NSW) s 101(2)(c) - exercise of discretion - indemnity costs - whether correspondence constituted Calderbank offer - unreasonable conduct leading to joinder of successful defendant - unreasonable conduct leading to other defendant's unsuccessful cross-claim
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(1) Supreme Court Act 1970 (NSW), ss 76(1), 101(2)(c) Workers Compensation Act 1987 (NSW), ss 151H, 151Z(1), 151Z(2)(c), (d), (e)(i) Workplace Injury Management and Workers Compensation Act 1998 (NSW), Ch 7, Pt 7, ss 322(1), 322(3), 326
Cases Cited:	ACQ v Cook (No 2) [2008] NSWCA 306 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 Calderbank v Calderbank [1976] Fam 93 CG Maloney Pty Ltd v Noon [2011] NSWCA 397 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Czatyrko v Edith Cowan University [2005] HCA 14; 214 ALR 349 Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354 Elliott v Bickerstaff [1999] NSWCA 453;