Bauer Media Pty Ltd v Khedrlarian - [2020] NSWCA 288

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Bauer Media Pty Ltd v Khedrlarian [2020] NSWCA 288
Hearing dates: 18 May 2020
Date of orders: 18 November 2020
Decision date: 18 November 2020
Before: Basten and Meagher JJA at [1];
Emmett AJA at [34]
Decision:
(1)   Allow the appeal by Bauer Media and set aside the orders 2, 4, 6, 9 and 11 made in the District Court on 4 October 2019.
(2)   In lieu thereof,
(a)   dismiss, as against the first defendant, the plaintiff’s amended statement of claim filed on 17 March 2017;
(b)   order that the plaintiff pay the costs of the first defendant in the District Court.
(3)   Order that the first respondent, Mary Khedrlarian, pay the costs of the appellant of its appeal in this Court.
(4)   Grant the Workers Compensation Nominal Insurer an extension of time and leave to file an appeal in the form of the notice of cross-appeal filed on 16 April 2020.
(5)   Allow the Workers Compensation Nominal Insurer’s appeal and set aside orders 3, 5, 7, 10 and 11 made in the District Court on 4 October 2019.
(6)   In lieu thereof,
(a)   dismiss, as against the second defendant, the plaintiff’s amended statement of claim filed on 17 March 2017;
(b)   order that the plaintiff pay the costs of the second defendant in the District Court.
(7)   Order that the first respondent, Mary Khedrlarian, pay the costs of the appeal brought by the Workers Compensation Nominal Insurer in this Court.

Catchwords:
TORTS — negligence — breach of duty — provision of safe system of work — precautions against workplace injury — adequacy of particularisation of precautions — evidence of whether precautions would obviate risk

Legislation Cited:
Civil Liability Act 2002 (NSW), s 5B
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), s 4
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Occupational Health andSafety Act 2000 (NSW)
Suitors’ Fund Act 1951 (NSW), s 8
Workers Compensation Regulation 2016 (NSW), Pt 17, Div 3
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 346

Cases Cited:
Bauer Media Pty Ltd t/as Network Services Company v Khedrlarian [2018] NSWCA 208
Brody v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29
Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14
Metropolitan Gas Co v City of Melbourne (1924) 35 CLR 186; [1924] HCA 46

Texts Cited:
Australian Standard AS1470-1986 Health and Safety at Work – Principles and Practices

Category: Principal judgment
Parties: Bauer Media Pty Ltd t/as Network Services Company (Appellant/Second Cross-Respondent)
Mary Khedrlarian (First Respondent/First Cross-Respondent)
Workers Compensation Nominal Insurer (Second Respondent/First Cross-Appellant)
Representation:
Counsel:
G M Watson SC with A L Reid (Appellant/Second Cross-Respondent)
G Parker SC with E Chrysostomou (First Respondent/First Cross-Respondent)
F Doak (Second Respondent/First Cross-Appellant)
Solicitors:
McCabe Curwood (Appellant/Second Cross-Respondent)
Sanford Legal (First Respondent/First Cross-Respondent)
HWL Ebsworth (Second Respondent/First Cross-Appellant)

File Number(s): 2019/325559
Publication restriction: Nil

Grounds of appeal

[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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Details

Case: [2020] NSWCA 288
Decision Date: 18 November 2020

CaseChat Overview and Summary

The appeal concerned a negligence claim brought by Mary Khedrlarian against Bauer Media Pty Ltd and the Workers Compensation Nominal Insurer. The dispute arose from injuries sustained by Ms. Khedrlarian in the workplace. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the District Court had erred in finding that Bauer Media and the Workers Compensation Nominal Insurer had breached their duty of care to Ms. Khedrlarian by failing to provide a safe system of work and adequate precautions against workplace injury. The court also considered the adequacy of the particularisation of the precautions alleged to be lacking and the evidence presented regarding whether such precautions would have obviated the risk of injury.

The Court of Appeal allowed the appeal by Bauer Media and the Workers Compensation Nominal Insurer, setting aside the orders made in the District Court. The court reasoned that the plaintiff's amended statement of claim, as filed, did not sufficiently particularise the alleged breaches of duty. Consequently, the court dismissed the plaintiff's claim against both defendants in the District Court and ordered the plaintiff to pay the costs of both defendants in that court. The court also ordered Ms. Khedrlarian to pay the costs of the appellant in the Court of Appeal. The Workers Compensation Nominal Insurer was granted an extension of time and leave to file its cross-appeal, which was also allowed.

Orders

Orders of the court

(1) Allow the appeal by Bauer Media and set aside the orders 2, 4, 6, 9 and 11 made in the District Court on 4 October 2019.

(2) In lieu thereof,

(a) dismiss, as against the first defendant, the plaintiff’s amended statement of claim filed on 17 March 2017;

(b) order that the plaintiff pay the costs of the first defendant in the District Court.

(3) Order that the first respondent, Mary Khedrlarian, pay the costs of the appellant of its appeal in this Court.

(4) Grant the Workers Compensation Nominal Insurer an extension of time and leave to file an appeal in the form of the notice of cross-appeal filed on 16 April 2020.

(5) Allow the Workers Compensation Nominal Insurer’s appeal and set aside orders 3, 5, 7, 10 and 11 made in the District Court on 4 October 2019.

(6) In lieu thereof,

(a) dismiss, as against the second defendant, the plaintiff’s amended statement of claim filed on 17 March 2017;

(b) order that the plaintiff pay the costs of the second defendant in the District Court.

(7) Order that the first respondent, Mary Khedrlarian, pay the costs of the appeal brought by the Workers Compensation Nominal Insurer in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bauer Media Pty Ltd v Khedrlarian [2020] NSWCA 288
Hearing dates:	18 May 2020
Date of orders:	18 November 2020
Decision date:	18 November 2020
Before:	Basten and Meagher JJA at [1]; Emmett AJA at [34]
Decision:	(1) Allow the appeal by Bauer Media and set aside the orders 2, 4, 6, 9 and 11 made in the District Court on 4 October 2019. (2) In lieu thereof, (a) dismiss, as against the first defendant, the plaintiff’s amended statement of claim filed on 17 March 2017; (b) order that the plaintiff pay the costs of the first defendant in the District Court. (3) Order that the first respondent, Mary Khedrlarian, pay the costs of the appellant of its appeal in this Court. (4) Grant the Workers Compensation Nominal Insurer an extension of time and leave to file an appeal in the form of the notice of cross-appeal filed on 16 April 2020. (5) Allow the Workers Compensation Nominal Insurer’s appeal and set aside orders 3, 5, 7, 10 and 11 made in the District Court on 4 October 2019. (6) In lieu thereof, (a) dismiss, as against the second defendant, the plaintiff’s amended statement of claim filed on 17 March 2017; (b) order that the plaintiff pay the costs of the second defendant in the District Court. (7) Order that the first respondent, Mary Khedrlarian, pay the costs of the appeal brought by the Workers Compensation Nominal Insurer in this Court.
Catchwords:	TORTS — negligence — breach of duty — provision of safe system of work — precautions against workplace injury — adequacy of particularisation of precautions — evidence of whether precautions would obviate risk
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5B Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), s 4 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Occupational Health andSafety Act 2000 (NSW) Suitors’ Fund Act 1951 (NSW), s 8 Workers Compensation Regulation 2016 (NSW), Pt 17, Div 3 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 346
Cases Cited:	Bauer Media Pty Ltd t/as Network Services Company v Khedrlarian [2018] NSWCA 208 Brody v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14 Metropolitan Gas Co v City of Melbourne (1924) 35 CLR 186; [1924] HCA 46
Texts Cited:	Australian Standard AS1470-1986 Health and Safety at Work – Principles and Practices
Category:	Principal judgment
Parties:	Bauer Media Pty Ltd t/as Network Services Company (Appellant/Second Cross-Respondent) Mary Khedrlarian (First Respondent/First Cross-Respondent) Workers Compensation Nominal Insurer (Second Respondent/First Cross-Appellant)
Representation:	Counsel: G M Watson SC with A L Reid (Appellant/Second Cross-Respondent) G Parker SC with E Chrysostomou (First Respondent/First Cross-Respondent) F Doak (Second Respondent/First Cross-Appellant) Solicitors: McCabe Curwood (Appellant/Second Cross-Respondent) Sanford Legal (First Respondent/First Cross-Respondent) HWL Ebsworth (Second Respondent/First Cross-Appellant)
File Number(s):	2019/325559
Publication restriction:	Nil