Australian Winch and Haulage Company Pty Ltd v Collins

The appeal concerned a personal injury claim brought by Mr. Collins against his employer, Australian Winch and Haulage Company Pty Ltd (AWH), and the installer of a shackle, Ports. Mr. Collins was injured when a gangway failed due to a faulty shackle. The dispute involved questions of evidence regarding the ordering of the correct shackle, negligence, causation, and the apportionment of responsibility between the defendants. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal included whether the plaintiff or the installer bore the burden of proving whether the correct shackle had been ordered, and if the plaintiff had discharged any such burden. The court also considered whether the employer's failure to institute a system of inspection constituted a cause of the plaintiff's injuries and whether the primary judge had erred in apportioning responsibility between the installer and the employer. Further issues related to the plaintiff's entitlement to claim the cost of funds management and pre-judgment interest, and the plaintiff's entitlement to an order for costs against the employer.

The Court of Appeal allowed the appeal in part, specifically concerning indemnity costs. The court varied the primary judge's orders regarding costs between the parties. AWH was ordered to pay Mr. Collins' costs of the appeal on the ordinary basis, and 90 per cent of Mr. Collins' costs of the cross-appeal. Ports was ordered to pay 75 per cent of Mr. Collins' costs of the cross-appeal. As between Ports and AWH, each party was to bear its own costs of the appeal and cross-appeal. The court also extended the time for Ports to file a notice of cross-appeal, subject to an undertaking to pay Mr. Collins' costs of the cross-appeal to the extent deemed appropriate.