Medium Neutral Citation: Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36
Hearing dates: 18 February 2022
Decision date: 15 March 2022
Before: Leeming JA at [1];
Simpson AJA at [58];
N Adams J at [71].
Decision:
1. Appeal allowed with costs.
2. Set aside the judgment and orders made by the District Court on 17 June 2021, and in lieu thereof enter judgment for the plaintiff with costs.
3. Direct the parties to supply within 14 days any agreed further orders, or in default of agreement, the orders for which they contend, and short submissions in support, as to the form and quantum of the judgment in Mr Cavanagh’s favour.

Catchwords:
NEGLIGENCE – workplace injury – plaintiff employee sustained injury following years of operating machine requiring him to drive tractor while turning his head – plaintiff gave divergent accounts of how frequently and how long he turned his head – primary judge dismissed claim on basis that injury not foreseeable – reasons for judgment very concise – whether primary judge made finding concerning plaintiff turning his head – whether if finding made, it accorded with evidence – whether reasons inadequate – whether proceedings needed to be remitted for further trial – causation and damages not in issue – finding of breach made and judgment for plaintiff entered

Legislation Cited:
Civil Liability Act 2002 (NSW), s 3B(1)(f)
Civil Procedure Act 2005 (NSW), s 56
Occupational Health and Safety Act 2000 (NSW) Occupational Health and Safety Regulation 2001 (NSW)
Supreme Court Act 1970 (NSW), s 75A(10)
Supreme Court Rules 1970 (NSW), Pt 51 r 23
Uniform Civil Procedure Rules (2005), r 51.53
Workers Compensation Act 1987 (NSW), Pt 5 Div 3
Workers Compensation Act 1987 (NSW), Pt 5, ss 151H, 151I
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 318, 326

Cases Cited:
Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1
Bray v Ford [1896] AC 44
Lloyd v Thornbury [2019] NSWCA 154
Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; [1963] HCA 4
Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36
Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Seltsam Pty Ltd v McNeil [2006] NSWCA 158; 4 DDCR 1
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Category: Principal judgment
Parties: Anthony Cavanagh (Appellant)
Manning Valley Race Club Ltd (formerly known as Taree-Wingham Race Club Ltd)
Representation:
Counsel:
H Marshall SC; P Menary (Appellant)
J Catsanos SC; T Berberian (Respondent)
Solicitors:
LHD Lawyers (Appellant)
Bartier Perry (Respondent)

File Number(s): 2021/199371
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court 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.

Continue reading Cavanagh v Manning Valley Race Club Ltd

Details

AGLC: Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36
Case: [2022] NSWCA 36
Decision Date: 15 March 2022

CaseChat Overview and Summary

The Court of Appeal of New South Wales heard an appeal concerning a workplace injury claim brought by Mr Cavanagh, an employee, against his employer, Manning Valley Race Club Ltd. The dispute arose from an injury Mr Cavanagh sustained after years of operating a machine that required him to drive a tractor while turning his head. Mr Cavanagh had provided inconsistent accounts regarding the frequency and duration of this head-turning activity.

The central legal issues before the Court of Appeal were whether the primary judge erred in dismissing the claim on the basis that the injury was not foreseeable, whether the primary judge made a finding concerning Mr Cavanagh turning his head and, if so, whether such a finding was supported by the evidence. The court also considered whether the primary judge's reasons for judgment were inadequate and whether the proceedings should be remitted for a further trial, noting that issues of causation and damages were not in dispute.

The Court of Appeal found that the primary judge's reasons were inadequate and that the judge had made a finding concerning the plaintiff turning his head which did not accord with the evidence. Consequently, the appeal was allowed, the judgment of the District Court was set aside, and judgment was entered for the plaintiff with costs. The parties were directed to provide further submissions regarding the form and quantum of the judgment.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the judgment and orders made by the District Court on 17 June 2021, and in lieu thereof enter judgment for the plaintiff with costs.

3. Direct the parties to supply within 14 days any agreed further orders, or in default of agreement, the orders for which they contend, and short submissions in support, as to the form and quantum of the judgment in Mr Cavanagh’s favour.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36

Most Recent Citation

Citilawyers Pty Ltd trading as Citilawyers v Tomaras [2025] NSWSC 209

Cases Citing This Decision

Citilawyers Pty Ltd trading as Citilawyers v Tomaras [2025] NSWSC 209
Citation 1 (Para 24)

…“As observed by Leeming JA (Simpson AJA and N Adams J agreeing) in Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 at [24] [c]oncision in judgments is desirable, but not if it comes at the expense of failing to give adequate reasons". In Cavanagh, the reasons were described as "strikingly short", four-and-…
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150
Citation 2

…55n; 170 ER 983 Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190 Chen v State of New South Wales [2016] NSWCA 177 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39…
Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited [2022] NSWCA 146
Citation 3 (Para 63)

…As observed by Leeming JA (Simpson AJA and N Adams J agreeing) in Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 at [24] “[c]oncision in judgments is desirable, but not if it comes at the expense of failing to give adequate reasons”. In Cavanagh , the reasons were described as “strikingly short”, four-and…

See all citing cases →

Cases Cited

Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296
Citation 1 (Para 5)

…duty to keep an employee free from injury: see for example Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296 at [19]. Breach is to be determined in accordance with the common law unaffected by the Civil Liability Act 2002 (NSW), which is disapplied by s 3B(1)(…
Pham v Gall [2020] NSWCA 116
Citation 2 (Para 39)

…ce had been erroneously admitted or rejected: see Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [13]-[16], Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [15] and Bray v Ford [1896] AC 44 at 52. In the latter, Lord Herschell observed of r 6 of the 1883 rules that the provision was “a very beneficial…
Lloyd v Thornbury [2019] NSWCA 154
Citation 3 (Para 23)

…nient to commence with the first ground, which inter alia contends that the primary judge failed to provide adequate reasons. As in Lloyd v Thornbury [2019] NSWCA 154 at [8], this is an “overarching issue” which infects the other complaints made on appeal.…
Nobarani v Mariconte (No 2) [2018] HCA 49
Citation 4 (Para 40)

…f the trial or in the reasons for judgment, but nonetheless the appeal should be dismissed because the error was immaterial: see Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [38]-[39]. But the operation of the rule is enhanced by s 75A(10) of the Supreme Court Act which empowers this Court to make any fi…
Nobarani v Mariconte [2018] HCA 36
Citation 5 (Para 40)

…e reasons for judgment, but nonetheless the appeal should be dismissed because the error was immaterial: see Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [38]-[39]. But the operation of the rule is enhanced by s 75A(10) of the Supreme Court Act which empowers this Court to make any finding which oug…
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Citation 6 (Para 25)

…ccasion in this appeal for any elaborate account of the applicable principles. Various authorities are collected in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[66], including at [59] the propositions that “[t]he reasons must do justice to the issues posed by the parties’ cases”, in order to “enable…
Seltsam Pty Ltd v Mcneill [2006] NSWCA 158
Citation 7 (Para 22)

…16], the primary judge reproduced a passage from Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 and a passage from Seltsam Pty Ltd v McNeil [2006] NSWCA 158; 4 DDCR 1 at [36], both dealing with the class of risks against which a defendant is required to take steps. The judgment then continued at [17]-[19]…
Weiss v The Queen [2005] HCA 81
Citation 8 (Para 39)

…nt on the part of the losing party to a new trial where evidence had been erroneously admitted or rejected: see Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [13]-[16], Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [15] and Bray v Ford [1896] AC 44 at 52. In the latter, Lord Herschell observed o…
Tame v New South Wales [2002] HCA 35
Citation 9 (Para 22)

…In [15] and [16], the primary judge reproduced a passage from Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 and a passage from Seltsam Pty Ltd v McNeil [2006] NSWCA 158; 4 DDCR 1 at [36], both dealing with the class of risks against which a defendant is required to take steps. The judgment then contin…
Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4
Citation 10 (Para 63)

…the Court proceeded on the basis that slippery conditions give rise to a risk of injury: Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; [1963] HCA 4: see, particularly, the introductory paragraph in the judgment of Kitto J. Equally, in 2021, it was hardly necessary for a plaintiff to adduce evidence…
Balenzuela v De Gail [1959] HCA 1
Citation 11 (Para 40)

…role of the court and the function of the jury to which Dixon CJ referred in this context in Balenzuela v De Gail (1959) 101 CLR 226 at 235-236; [1959] HCA 1 when contrasting the Judicature legislation predecessor to r 51.53 and its common law antecedent and noting that a retrial could not be avoided by the co…
[1896] AC 44 [1896] AC 44
Citation 12 (Para 39)

…ted: see Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [13]-[16], Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [15] and Bray v Ford [1896] AC 44 at 52. In the latter, Lord Herschell observed of r 6 of the 1883 rules that the provision was “a very beneficial one”, and that “I should be sorry to…

Legislation Cited

Workplace Injury Management and Workers Compensation Act 1998 (NSW) 318, 318(1)(b), 326, 326(1)(a)
4 mentions (from Para 2)
Civil Liability Act 2002 (TAS) 3B(1)(f)
2 mentions (from Para 5)
Civil Procedure Act 2005 (NSW) 56
2 mentions (from Para 45)
Supreme Court Act 1970 (NSW) 75A(10)
2 mentions (from Para 39)
Judicature Act 1873 (UK)
1 mention (from Para 39)
Occupational Health and Safety Act 2000 (NSW)
1 mention (from Para 65)
Supreme Court Rules 1970 (NSW)
1 mention
Workers Compensation Act 1987 (NSW)
1 mention (from Para 5)

Medium Neutral Citation:	Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36
Hearing dates:	18 February 2022
Decision date:	15 March 2022
Before:	Leeming JA at [1]; Simpson AJA at [58]; N Adams J at [71].
Decision:	1. Appeal allowed with costs. 2. Set aside the judgment and orders made by the District Court on 17 June 2021, and in lieu thereof enter judgment for the plaintiff with costs. 3. Direct the parties to supply within 14 days any agreed further orders, or in default of agreement, the orders for which they contend, and short submissions in support, as to the form and quantum of the judgment in Mr Cavanagh’s favour.
Catchwords:	NEGLIGENCE – workplace injury – plaintiff employee sustained injury following years of operating machine requiring him to drive tractor while turning his head – plaintiff gave divergent accounts of how frequently and how long he turned his head – primary judge dismissed claim on basis that injury not foreseeable – reasons for judgment very concise – whether primary judge made finding concerning plaintiff turning his head – whether if finding made, it accorded with evidence – whether reasons inadequate – whether proceedings needed to be remitted for further trial – causation and damages not in issue – finding of breach made and judgment for plaintiff entered
Legislation Cited:	Civil Liability Act 2002 (NSW), s 3B(1)(f) Civil Procedure Act 2005 (NSW), s 56 Occupational Health and Safety Act 2000 (NSW) Occupational Health and Safety Regulation 2001 (NSW) Supreme Court Act 1970 (NSW), s 75A(10) Supreme Court Rules 1970 (NSW), Pt 51 r 23 Uniform Civil Procedure Rules (2005), r 51.53 Workers Compensation Act 1987 (NSW), Pt 5 Div 3 Workers Compensation Act 1987 (NSW), Pt 5, ss 151H, 151I Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 318, 326
Cases Cited:	Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1 Bray v Ford [1896] AC 44 Lloyd v Thornbury [2019] NSWCA 154 Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; [1963] HCA 4 Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Seltsam Pty Ltd v McNeil [2006] NSWCA 158; 4 DDCR 1 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Category:	Principal judgment
Parties:	Anthony Cavanagh (Appellant) Manning Valley Race Club Ltd (formerly known as Taree-Wingham Race Club Ltd)
Representation:	Counsel: H Marshall SC; P Menary (Appellant) J Catsanos SC; T Berberian (Respondent) Solicitors: LHD Lawyers (Appellant) Bartier Perry (Respondent)
File Number(s):	2021/199371
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South…