B P Australia Pty Ltd v Tarren

New South Wales

Court of Appeal

CITATION:	B P Australia Pty Ltd v Tarren [2006] NSWCA 305
HEARING DATE(S):	03/11/06
JUDGMENT DATE:	3 November 2006
JUDGMENT OF:	Ipp JA at 1; Tobias JA at 29; McColl JA at 30
EX TEMPORE JUDGMENT DATE:	11/03/2006
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE - respondent injured while moving heavy safes at work - contributory negligence - single injury cased by two events - WORKERS' COMPENSATION - s 151Z(2) of the Workers Compensation Act 1987 (NSW) not pleaded at trial. ND
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), s 16 Workers Compensation Act 1987 (NSW) s 151Z(2) Motor Accidents Act 1988 (NSW)
CASES CITED:	Forstaff Blacktown Pty Ltd v Brimac Pty Ltd (2005) Aust Torts Reports 81-814 Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228 Muller v Sanders; Nominal Defendant v Sanders (1995) 21 MVR 309 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1
PARTIES:	BP Australia Pty Ltd (Appellant) Elise Tarren (Respondent)
FILE NUMBER(S):	CA 40080/06
COUNSEL:	K P Rewell SC (Appellant) S Norton SC/E Welsh (Respondent)
SOLICITORS:	Corrs Chambers Westgarth (Appellant) Brydens Law Office (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4033/04
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ
LOWER COURT DATE OF DECISION:	25/01/06

CA 40080/06
DC 4033/04

IPP JA
TOBIAS JA
McCOLL JA

Friday 3 November 2006

BP AUSTRALIA PTY LTD v ELISE TARREN

Judgment

1 IPP JA: This appeal concerns a judgment and verdict in the amount of $559,431 for damages for personal injuries in favour of the respondent against the appellant.

2 The respondent's claim arose out of injuries to her back. She sustained these while removing safes from service station premises she managed at Bondi and Woollahra. The appellant was the owner and occupier of the premises, but not the respondent's employer.

3 On appeal the appellant accepted that the trial judge, Sidis DCJ, was entitled to find that the appellant owed the respondent a duty of care, and that the duty of care was akin to that owed by an employer, TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1.

4 The trial judge found that the appellant had negligently directed the respondent to move the safes, which were very heavy, without adequate instruction as to how to undertake this task, and in the absence of proper assistance.

5 Initially, Mr Rewell SC, who appeared for the appellant, argued that there was incontrovertible evidence, firstly, to the effect that the respondent did not move the safes, and, secondly, that, if she did move the safes, she did not injure her back in doing so.

6 Later, Mr Rewell accepted that the evidence on which he relied (the respondent's diary, a claim form that she completed, and several medical reports) was not incontrovertible, but submitted that the evidence in question carried so much weight that it rendered the judge's findings, on which she relied in holding the appellant negligent, glaringly improbable.

7 The thrust of Mr Rewell's…