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Bostik Australia Pty Ltd v Liddiard

Bostik Australia Pty Ltd v Liddiard

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Case Copied 26 June 2009 84 min read

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Appeal Outcome: Special leave dismissed with costs by the High Court, 12 February 2010 s177/2009

New South Wales

Court of Appeal

CITATION: Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 and 23 February 2009

JUDGMENT DATE:
26 June 2009

JUDGMENT OF: Beazley JA at 1; Ipp JA at 113; Basten JA at 128

DECISION: (1) Allow the appeal and set aside orders (2)-(6) made by Hungerford ADCJ in the District Court on 9 May 2008.
(2) In lieu thereof:
(a) enter judgment for the second defendant against the plaintiff, and
(b) order the plaintiff to pay the second defendant’s costs of the proceedings, other than those attributable to the cross-claims.
(3) Order the first respondent (Mr Liddiard) to pay the appellant’s costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent.
(4) Otherwise make no order as to the costs of the appellant and the second respondent in respect of the appeal.
(5) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

CATCHWORDS: LIMITATION OF ACTIONS – interpretation of the Limitations Act 1969, s 50C and s 50D – date when a cause of action is “discoverable” – whether a person has to know the facts necessary to establish the fault of the defendant or has to know that the defendant is, as a matter of law, liable to pay damages - EVIDENCE – admissibility – evidence given by a manager – whether manager can give evidence of the tasks required to be performed as part of her/his employment - EVIDENCE – admissibility – evidence sought to be adduced from manager as to her/his employer’s legal liability – objection by employer – whether manager’s ostensible authority extends to making an admission as to her/his employer’s legal liability - TORTS – negligence – duty of care – labour hire like arrangement between defendant and employer – whether defendant owes a hired labourer a duty of care – whether defendant breached its duty - TORTS – negligence – duty of care – whether occupier liable for injury to employee of independent contractor – degree of control over or co-ordination of employee's activities – whether existence of obligation to ensure safe system of work - TORTS – negligence – breach of duty – whether any steps required to render system of work safe – whether steps to ensure safety would have ameliorated risk of injury - TORTS – negligence – duty of care – labour hire like arrangement between defendant and employer – breach of respective duties by defendant and employer – apportionment of liability

LEGISLATION CITED: Civil Liability Act 2002, s 5B
Civil Procedure Act 2002, s 98
Limitation Act 1969, s 50C, s 50D
Uniform Civil Procedure Rules 2005, r 42.1

CATEGORY: Principal judgment

CASES CITED: Baker-Morrison v State of New South…

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: [2009] NSWCA 167
Decision Date: 26 June 2009

CaseChat Overview and Summary

This case concerned an appeal from the District Court of New South Wales, brought by Bostik Australia Pty Ltd (the appellant) against Mr Liddiard (the plaintiff). The dispute arose from injuries sustained by Mr Liddiard while working for a labour hire company, and the subsequent legal action he took against Bostik, alleging negligence. The appeal considered the interpretation of the Limitations Act 1969 (NSW) regarding when a cause of action becomes discoverable, and the admissibility of evidence concerning an employer's legal liability.

The primary legal issues before the Court of Appeal were whether the "discoverable" date under sections 50C and 50D of the Limitations Act 1969 required the plaintiff to know the facts constituting the defendant's fault or to know that the defendant was legally liable for damages. Additionally, the court had to determine the admissibility of evidence from a manager regarding the tasks required in her employment and, crucially, whether her ostensible authority extended to admitting her employer's legal liability. The court also examined whether Bostik owed Mr Liddiard a duty of care in the context of a labour hire arrangement, whether this duty was breached, and if so, the extent of any apportionment of liability between Bostik and Mr Liddiard's employer.

The Court of Appeal, in allowing the appeal, found that the discoverability of a cause of action under the Limitations Act 1969 requires knowledge of the facts constituting the fault, not necessarily the legal conclusion of liability. The court also held that a manager's evidence regarding the employer's legal liability was inadmissible, as such an admission was beyond the scope of their ostensible authority. Consequently, the court set aside the District Court's judgment in favour of Mr Liddiard and entered judgment for Bostik, ordering Mr Liddiard to pay Bostik's costs of the proceedings. The court also made orders regarding the costs of the appeal and granted Mr Liddiard a certificate under the Suitors’ Fund Act 1951 (NSW).

Orders

Orders of the court

(1) Allow the appeal and set aside orders (2)-(6) made by Hungerford ADCJ in the District Court on 9 May 2008.

(2) In lieu thereof:

(a) enter judgment for the second defendant against the plaintiff, and

(b) order the plaintiff to pay the second defendant’s costs of the proceedings, other than those attributable to the cross-claims.

(3) Order the first respondent (Mr Liddiard) to pay the appellant’s costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent.

(4) Otherwise make no order as to the costs of the appellant and the second respondent in respect of the appeal.

(5) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

02/07/2009 - Typgraphical error - Paragraph(s) 161

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19 and 23 February 2009
JUDGMENT DATE:	26 June 2009
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 113; Basten JA at 128
DECISION:	(1) Allow the appeal and set aside orders (2)-(6) made by Hungerford ADCJ in the District Court on 9 May 2008. (2) In lieu thereof: (a) enter judgment for the second defendant against the plaintiff, and (b) order the plaintiff to pay the second defendant’s costs of the proceedings, other than those attributable to the cross-claims. (3) Order the first respondent (Mr Liddiard) to pay the appellant’s costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent. (4) Otherwise make no order as to the costs of the appellant and the second respondent in respect of the appeal. (5) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
CATCHWORDS:	LIMITATION OF ACTIONS – interpretation of the Limitations Act 1969, s 50C and s 50D – date when a cause of action is “discoverable” – whether a person has to know the facts necessary to establish the fault of the defendant or has to know that the defendant is, as a matter of law, liable to pay damages - EVIDENCE – admissibility – evidence given by a manager – whether manager can give evidence of the tasks required to be performed as part of her/his employment - EVIDENCE – admissibility – evidence sought to be adduced from manager as to her/his employer’s legal liability – objection by employer – whether manager’s ostensible authority extends to making an admission as to her/his employer’s legal liability - TORTS – negligence – duty of care – labour hire like arrangement between defendant and employer – whether defendant owes a hired labourer a duty of care – whether defendant breached its duty - TORTS – negligence – duty of care – whether occupier liable for injury to employee of independent contractor – degree of control over or co-ordination of employee's activities – whether existence of obligation to ensure safe system of work - TORTS – negligence – breach of duty – whether any steps required to render system of work safe – whether steps to ensure safety would have ameliorated risk of injury - TORTS – negligence – duty of care – labour hire like arrangement between defendant and employer – breach of respective duties by defendant and employer – apportionment of liability
LEGISLATION CITED:	Civil Liability Act 2002, s 5B Civil Procedure Act 2002, s 98 Limitation Act 1969, s 50C, s 50D Uniform Civil Procedure Rules 2005, r 42.1
CATEGORY:	Principal judgment
CASES CITED:	Baker-Morrison v State of New South…