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-claimLegislation 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), 326Cases 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;
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- AGLC
- AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346
- Case
- [2014] NSWCA 346
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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