Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146
Hearing dates:
22, 23 February 2018
Date of orders:
27 July 2018
Decision date:
27 July 2018
Before:
McColl JA at [1]; Payne JA at [2]; White JA at [182]
Decision:
In 2017/117390:
1. Leave to amend the amended statement of claim sought on 23 February 2018 is refused;
2. Appeal allowed;
3. Set aside orders 1 – 4 made by the primary judge on 3 May 2017;
4. Within seven days Mr Bosevski to file proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 10 pages;
5. Within 14 days Avopiling to file any competing proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 10 pages;
6. Within 21 days Mr Bosevski to file any final version of proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 5 pages;
7. Avopiling to pay 60 per cent of Mr Bosevski’s costs of the appeal as agreed or assessed.
In 2017/117381:
1. Appeal dismissed;
2. Avopiling to pay the Workers Compensation Nominal Insurer’s costs of the appeal as agreed or assessed.
Catchwords:
TORTS – negligence – employer – whether formulation of risk of harm impermissibly narrow – whether breach of duty of care – whether employer should have appreciated risk of harm
TORTS – negligence – contributory negligence – risk of harm – whether formulation of risk of harm impermissibly narrow – whether respondent or his employer knew or should have known of risk of harm – whether open to the primary judge to draw a Jones v Dunkel inference from the failure of the appellant to call the only two people who could give evidence about the moment of injury
[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.
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AGLC
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Case
[2018] NSWCA 146
Decision Date
CaseChat Overview and Summary
Avopiling Pty Ltd appealed from a decision of the primary judge in favour of Mr Bosevski, who had brought proceedings against his employer, Avopiling, for damages for negligence. The dispute concerned injuries Mr Bosevski sustained while working for Avopiling. The appeal was heard in the Court of Appeal of New South Wales by McColl, Payne and White JJA.
The primary legal issues before the Court of Appeal were whether the primary judge had erred in finding that Avopiling breached its duty of care to Mr Bosevski, and whether the formulation of the risk of harm was impermissibly narrow. Relatedly, the court considered whether Mr Bosevski or his employer knew or should have known of the risk of harm, and whether it was open to the primary judge to draw a *Jones v Dunkel* inference from Avopiling's failure to call the only two witnesses who could have given evidence about the moment of injury. The court also considered the basis of assessment of damages, including future economic loss, future attendant care needs, and future medical expenses, in light of the *Civil Liability Act 2002* (NSW) and relevant High Court authorities. Finally, the court addressed the appropriateness of awarding costs on the basis of mixed success on significant and separable parts of the appeal.
The Court of Appeal allowed Avopiling's appeal in part, setting aside the primary judge's orders. The court found that the primary judge had erred in his formulation of the risk of harm and consequently in his finding of a breach of duty of care. The court also considered that the *Jones v Dunkel* inference was not available in the circumstances. The court noted that the assessment of damages would need to be reconsidered in light of these findings. In relation to costs, the court ordered that Avopiling pay 60 per cent of Mr Bosevski’s costs of the appeal. In a separate, related appeal concerning the Workers Compensation Nominal Insurer, Avopiling's appeal was dismissed, and Avopiling was ordered to pay the Nominal Insurer's costs of that appeal.
Orders
Orders of the court
In 2017/117390:
1. Leave to amend the amended statement of claim sought on 23 February 2018 is refused;
2. Appeal allowed;
3. Set aside orders 1 – 4 made by the primary judge on 3 May 2017;
4. Within seven days Mr Bosevski to file proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 10 pages;
5. Within 14 days Avopiling to file any competing proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 10 pages;
6. Within 21 days Mr Bosevski to file any final version of proposed orders to be made by the Court to reflect these reasons together with any written submissions in support of those proposed orders limited to 5 pages;
7. Avopiling to pay 60 per cent of Mr Bosevski’s costs of the appeal as agreed or assessed.
In 2017/117381:
1. Appeal dismissed;
2. Avopiling to pay the Workers Compensation Nominal Insurer’s costs of the appeal as agreed or assessed.