Berrico Estate Pty. Ltd. v Andersen - [2003] NSWCA 23

CITATION: Berrico Estate Pty. Ltd. v. Andersen [2003] NSWCA 23

HEARING DATE(S): 11 February 2003

JUDGMENT DATE:
11 February 2003

JUDGMENT OF: Giles JA at 1, 37; Hodgson JA at 2; Cripps AJA at 52

DECISION: Extend time to apply for leave to appeal up to and including 24 May 2002. Grant leave to appeal and direct that the notice of appeal be filed within fourteen days. Appeal upheld. Verdict and judgment for the plaintiff and the order for costs below set aside and in lieu thereof verdict and judgment for the defendant and an order that the plaintiff pay the defendant's costs. Plaintiff to pay the defendant's costs in this Court and have a certificate under the Suitor's Fund Act if otherwise qualified.

CATCHWORDS: WORKERS COMPENSATION - Common law claim - Liability - Whether decision that employer liable in negligence should be set aside - Damages - Whether decision that thresholds passed supportable on primary judge's findings.

LEGISLATION CITED: Workers Compensation Act 1987 ss.151B, 151G, 151H

CASES CITED: Dell v. Dalton (1991) 23 NSWLR 528
Oran Park Motor Sport Pty. Ltd. v. Fleissig [2002] NSWCA 371
Planet Fisheries Pty. Ltd. v. La Rosa (1968) 119 CLR 118
Van Der Sluice v. Display Craft Pty. Ltd. [2002] NSWCA 204
Wilson v. Peisley (1976) 50 ALJR 207

PARTIES :
Berrico Estate Pty. Ltd. (t/a Higgins Manufacturing Group Pty. Ltd.) - appellant
Neils Andersen - respondent

FILE NUMBER(S): CA 40118/02

COUNSEL: Mr. D.J. Hooke for appellant
Mr. J. Hislop QC with Mr. H.J. Halligan for respondent

SOLICITORS: Neville & Edwards, Sydney for appellant
Beilby Poulden Costello, Sydney for respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC5173/00

LOWER COURT
JUDICIAL OFFICER : Twigg DCJ

CA 40118/02
DC 5173/00

GILES JA
HODGSON JA
CRIPPS AJA
Tuesday 11 February 2003

BERRICO ESTATE PTY. LTD. (t/a HIGGINS MANUFACTURING GROUP PTY LTD.) V. ANDERSEN

Judgment

1 GILES JA: I will ask Hodgson JA to give the first reasons.

2 HODGSON JA: On 21 January 2002 Twigg DCJ gave judgment in proceedings in which the opponent, Neils Andersen, sought damages under the Workers Compensation Act 1987 against his former employer, the claimant Berrico Estate Pty Limited. He gave a verdict for the opponent in the sum of $132,130.71, but this was subsequently amended under the slip rule to $89,810.71.

3 The claimant seeks leave to appeal against that decision, both on the question of liability and on the question of quantum of damages. The application for leave has been argued on the basis that if leave is granted, the appeal will be decided without further argument. An extension of time was required and no submission in opposition to the grant of the extension of time was made: in my opinion, that extension should be granted.

4 I will start with outlining the circumstances of the case. The opponent was born in Denmark in 1958 and came to Australia when he was twelve years old. After leaving school, he worked with his father as a carpet…

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: [2003] NSWCA 23
Decision Date: 11 February 2003

CaseChat Overview and Summary

Berrico Estate Pty. Ltd. appealed to the New South Wales Court of Appeal against a decision of the District Court of New South Wales that found it liable in negligence to the respondent, Mr. Andersen, and awarded him damages. The appeal concerned whether the primary judge's findings supported the conclusion that the employer was liable in negligence and whether the thresholds for damages had been met.

The Court of Appeal was required to determine whether the primary judge erred in finding Berrico Estate Pty. Ltd. liable in negligence for the injuries sustained by Mr. Andersen. A further issue was whether the primary judge's findings of fact were sufficient to establish that Mr. Andersen had passed the necessary thresholds to be awarded common law damages for his injuries.

The Court of Appeal found that the primary judge's findings of fact did not support the conclusion that Berrico Estate Pty. Ltd. was negligent. Specifically, the court determined that the evidence did not establish that the employer had breached its duty of care to Mr. Andersen. Consequently, the court upheld the appeal, setting aside the verdict and judgment for the plaintiff and the order for costs below. In their place, the court entered a verdict and judgment for the defendant, Berrico Estate Pty. Ltd., and ordered that Mr. Andersen pay the defendant's costs. Mr. Andersen was also ordered to pay the defendant's costs in the Court of Appeal.

Orders

Orders of the court

Extend time to apply for leave to appeal up to and including 24 May 2002. Grant leave to appeal and direct that the notice of appeal be filed within fourteen days. Appeal upheld. Verdict and judgment for the plaintiff and the order for costs below set aside and in lieu thereof verdict and judgment for the defendant and an order that the plaintiff pay the defendant's costs. Plaintiff to pay the defendant's costs in this Court and have a certificate under the Suitor's Fund Act if otherwise qualified.

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.

CITATION:	Berrico Estate Pty. Ltd. v. Andersen [2003] NSWCA 23
HEARING DATE(S):	11 February 2003
JUDGMENT DATE:	11 February 2003
JUDGMENT OF:	Giles JA at 1, 37; Hodgson JA at 2; Cripps AJA at 52
DECISION:	Extend time to apply for leave to appeal up to and including 24 May 2002. Grant leave to appeal and direct that the notice of appeal be filed within fourteen days. Appeal upheld. Verdict and judgment for the plaintiff and the order for costs below set aside and in lieu thereof verdict and judgment for the defendant and an order that the plaintiff pay the defendant's costs. Plaintiff to pay the defendant's costs in this Court and have a certificate under the Suitor's Fund Act if otherwise qualified.
CATCHWORDS:	WORKERS COMPENSATION - Common law claim - Liability - Whether decision that employer liable in negligence should be set aside - Damages - Whether decision that thresholds passed supportable on primary judge's findings.
LEGISLATION CITED:	Workers Compensation Act 1987 ss.151B, 151G, 151H
CASES CITED:	Dell v. Dalton (1991) 23 NSWLR 528 Oran Park Motor Sport Pty. Ltd. v. Fleissig [2002] NSWCA 371 Planet Fisheries Pty. Ltd. v. La Rosa (1968) 119 CLR 118 Van Der Sluice v. Display Craft Pty. Ltd. [2002] NSWCA 204 Wilson v. Peisley (1976) 50 ALJR 207
PARTIES :	Berrico Estate Pty. Ltd. (t/a Higgins Manufacturing Group Pty. Ltd.) - appellant Neils Andersen - respondent
FILE NUMBER(S):	CA 40118/02
COUNSEL:	Mr. D.J. Hooke for appellant Mr. J. Hislop QC with Mr. H.J. Halligan for respondent
SOLICITORS:	Neville & Edwards, Sydney for appellant Beilby Poulden Costello, Sydney for respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC5173/00
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ