Bresmac Pty Ltd v Starr

Bresmac Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales concerning contribution between tortfeasors. The dispute arose from a claim by a plaintiff who had suffered injuries, for which Bresmac and another party were found to be concurrently liable. The plaintiff's damages had already been reduced by the notional liability of a co-tortfeasor under section 151Z(2) of the *Workers Compensation Act 1987* (NSW). Bresmac sought to argue on appeal that this reduction should not have been applied in the assessment of contribution between tortfeasors.

The primary legal issue before the Court of Appeal was whether the reduction in the plaintiff's damages, made pursuant to section 151Z(2) of the *Workers Compensation Act 1987* (NSW), should be taken into account when determining the extent of contribution recoverable between concurrent tortfeasors under section 5(1)(c) of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW). A secondary issue, which arose during the appeal, concerned whether a point not taken at the original hearing could be raised on appeal.

The Court of Appeal dismissed the appeal, holding that the point Bresmac sought to raise on appeal had not been taken in the court below and therefore could not be raised on appeal. The Court affirmed the general principle that points not taken at the hearing are not permitted to be raised on appeal, particularly where doing so would involve a re-litigation of the factual matrix or introduce new arguments that were not considered by the trial judge. Consequently, the appeal was dismissed with costs.