Australian Winch & Haulage Pty Ltd v Philip Archibald Collins

[2014] HCASL 98

AUSTRALIAN WINCH & HAULAGE PTY LTD

v

PHILIP ARCHIBALD COLLINS & ANOR

[2014] HCASL 98
S204/2013

1. Mr Philip Collins, the first respondent, was employed as an engineer with the Sydney Ports Corporation ("Sydney Ports"), the second respondent.  In July 2001, Mr Collins suffered serious injury at work when a gangway on which he was walking malfunctioned.  The cause of the malfunction was an unsuitable shackle, supplied and installed by the applicant, Australian Winch & Haulage Pty Ltd ("AWH").

2. Mr Collins brought proceedings in the Supreme Court of New South Wales claiming damages in negligence against AWH and Sydney Ports.  The Court (Harrison J) entered judgment for Mr Collins against AWH and Sydney Ports. 

3. AWH appealed to the Court of Appeal of the Supreme Court of New South Wales contending that the primary judge had wrongly held that AWH bore the onus of proving that it had ordered the correct grade of shackle.  The Court of Appeal (Emmett and Leeming JJA and Sackville AJA) upheld this challenge but concluded that the primary judge's finding on this issue should nonetheless stand because Mr Collins had established the fact on the balance of probabilities[1].  AWH's appeal save with respect to the form of the costs order, was dismissed. 

   [1]Australian Winch & Haulage Pty Ltd v Collins [2013] NSWCA 327 at [109].

4. AWH applies for special leave to appeal.  The special leave questions that are suggested to arise turn on factual considerations and do not raise any issue of principle.  Nor do they engage the interests of the administration of justice.

5. The application is dismissed.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
13 May 2014 S.J. Gageler