Attorney General for New South Wales v Gatsby

The appeal concerned a negligence claim brought by an employee of Strategic Formwork Pty Ltd (Strategic Formwork) against both Strategic Formwork and Gatsby Pty Ltd (Gatsby). The plaintiff sustained injuries while working at premises operated by Gatsby, which were also the site of an integrated business operation run by both companies. The primary dispute revolved around whether Gatsby owed a duty of care to the plaintiff, an employee of Strategic Formwork, concerning occupational health and safety at Gatsby's premises. The case was heard in the New South Wales Court of Appeal.

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether a novel category of duty of care existed, specifically whether Gatsby owed a duty to an employee of Strategic Formwork working on Gatsby's premises, given Gatsby's control over the operations. Secondly, the court was asked to review the trial judge's findings regarding the apportionment of responsibility between the parties. Thirdly, the assessment of damages, including non-economic loss and loss of earning capacity (taking into account UK earnings and superannuation law), was subject to appeal. Finally, the court addressed issues relating to costs, including the application of the "costs follow the event" rule where an appeal was allowed in part and the circumstances of awarding multiple sets of costs to respondents with interests in common.

In its reasoning, the Court of Appeal analysed the principles governing the imposition of a duty of care in novel circumstances, drawing on established authorities such as *Caltex Refineries v Stavar*. The court considered the degree of control Gatsby exercised over the operations at its premises and the foreseeability of harm to employees of Strategic Formwork. The court found that Gatsby did owe a duty of care to the plaintiff. However, the court modified the trial judge's award for economic loss, reducing the total judgment against Strategic Formwork. The court also dismissed the cross-appeal by Daniel Hitchen.

The orders of the Court of Appeal reflected these findings. The judgment against Strategic Formwork was reduced, and the appeal by Strategic Formwork was otherwise dismissed. The cross-appeal by Daniel Hitchen was dismissed without costs. Strategic Formwork was ordered to pay 90% of Daniel Hitchen's costs of the appeal and RTS Holdings Pty Ltd its costs of the appeal.