Legal Research
Cases
Clarence Valley Council v Macpherson

Clarence Valley Council v Macpherson

Case [2011] NSWCA 422 22 December 2011

Type to search within this case.

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clarence Valley Council v Macpherson [2011] NSWCA 422
Hearing dates: 24 November 2011
Decision date: 22 December 2011
Before: Young JA at 1; Sackville AJA at 2; Tobias AJA at 3
Decision:
(a) Appeal allowed in part;
(b) Set aside the verdict and judgment of her Honour Judge Flannery SC of 16 March 2011 in the sum of $536,880.47 and substitute therefor a verdict and judgment for the respondent against the appellant in the sum of $414,207.94.
(c) Each party to bear their own costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - personal injury - chainsaw - host employer - labour hire company - existence of duty of care - breach of duty of care - apportionment - assessment of damages - non economic loss - past economic loss - future economic loss - past attendant care services
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Cases Cited: Czatyrko v Edith Cowen University [2005] HCA 14; (2005) 214 ALR 349; (2005) 79 ALJR 839
Dell v Dalton (1991) 23 NSWLR 528
Jakovich Transport and Earthmoving Pty Limited v Spiral Tubemakers Pty Limited (2000) 31 MVR 141
Kurrie v Azouri (1998) 28 MR 406
Lee Transport Co Limited v Watson (1940) 64 CLR 1
Moran v McMahon [1985] 3 NSWLR 700
Miller v Jennings (1954) 92 CLR 190
Owners - Strata Plan 156 v Gray [2004] NSWCA 304
Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492
Sherwood v Guneser (1992) 110 FLR 459
TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Category: Principal judgment
Parties: Appellant: CLARENCE VALLEY COUNCIL
Respondent: Robert John MACPHERSON
Representation: Counsel:
Appellant: P G Mahony SC/ S E McCarthy
Respondent: S G Campbell SC/ R Harrington
Solicitors:
Appellant: DLA Piper
Respondent: Lee Sames Egan

File Number(s): CA 2011/119744
Decision under appeal

Date of Decision:

2011-03-16 00:00:00

Before:

Flannery DCJ

File Number(s):

2010/101487

Judgment

YOUNG JA: I agree with Tobias AJA.

SACKVILLE AJA: I agree with Tobias AJA.

TOBIAS AJA: On 30 October 2008 the respondent, Robert John Macpherson, sustained a severe twisting injury to his right wrist together with a fracture of the base of the fourth metacarpal whilst using an auger drill bit powered by a chainsaw to drill holes in camphor laurel trees to enable them to be poisoned. He instituted proceedings against the appellant, Clarence Valley Council, for whom he was then carrying out that work. The respondent's actual employer at the time was a labour…

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 Clarence Valley Council v Macpherson

Details

AGLC: Clarence Valley Council v Macpherson [2011] NSWCA 422
Case: [2011] NSWCA 422
Decision Date: 22 December 2011

CaseChat Overview and Summary

In *Clarence Valley Council v Macpherson*, the Court of Appeal of New South Wales considered an appeal by Clarence Valley Council against a judgment entered in favour of Mr Macpherson. Mr Macpherson had suffered personal injury while working for the Council, which was his host employer, having been engaged through a labour hire company. The dispute concerned the Council's liability in negligence for Mr Macpherson's injuries and the assessment of damages.

The primary legal issues before the Court of Appeal were whether the Council owed Mr Macpherson a duty of care, whether that duty had been breached, and if so, how the damages should be apportioned between the parties. The Court was also required to review the assessment of damages, including non-economic loss, past and future economic loss, and past attendant care services.

The Court of Appeal found that the Council did owe Mr Macpherson a duty of care as a host employer. However, it varied the original judgment by reducing the awarded damages. This reduction was based on a reassessment of the apportionment of liability and the quantum of certain heads of damage. The Court allowed the appeal in part, setting aside the original verdict and judgment and substituting a reduced sum. The parties were ordered to bear their own costs of the appeal.

Orders

Orders of the court

(a) Appeal allowed in part;

(b) Set aside the verdict and judgment of her Honour Judge Flannery SC of 16 March 2011 in the sum of $536,880.47 and substitute therefor a verdict and judgment for the respondent against the appellant in the sum of $414,207.94.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Citations

AGLC Citation

Clarence Valley Council v Macpherson [2011] NSWCA 422

Most Recent Citation

Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 52

Cases citing this decision · 5 of 5 shown

The Clean Plumber Pty Limited v Communications Construction Consultants Pty Limited
[2014] NSWDC 320 Para 20

…Further, in Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 52 and Clarence Valley Council v Macpherson [2011] NSWCA 422, where in both cases the percentage of a most extreme case was assessed at 25% the plaintiffs seemed to have a similar level of pain and suffering. This assessment of 25% produces an amount o…
Merle Marie McMorrow v Todarello Pty Limited trading as the Fruit House Faulconbridge
[2014] NSWDC 75 Para 1

…situation pertaining to the plaintiff in that case. I also take into account those relevant factors specified in Clarence Valley Council v Macpherson [2011] NSWCA 422 per Tobias AJA at [82] which are analogous to this case. The plaintiff's age - here 50 - is also relevant: Reece v Reece (1994) 19 MVR 103.…
Josephine Williams v Landsdowne Partners Pty Ltd t/as 202 Broadway
[2013] NSWDC 154 Para 1

…situation pertaining to the plaintiff in that case. I also take into account those relevant factors specified in Clarence Valley Council v Macpherson [2011] NSWCA 422 per Tobias AJA at [82] which are analogous to this case. The plaintiff's age is also relevant: Reece v Reece (1994) 19 MVR 103.…
Opoku v P and M Quality Smallgoods P/ L and othersOpoku v Kaybron No 6 P/L
[2012] NSWSC 478 Para 5

…d labour hire companies, including Unilever v Pahi, J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 and Clarence Valley Council v Macpherson [2011] NSWCA 422. Each case, however, depends on its own facts and circumstances.…
Kemble v Gate Gourmet Services Pty Ltd
[2012] NSWDC 52 Para 1

…nd assessed his non-economic loss at 30%, rejecting a submission by the plaintiff for 35%. The Court of Appeal ( Clarence Valley Council v MacPherson [2011] NSWCA 422 at [82]) found that although the plaintiff had suffered a serious injury to his right wrist, he was "generally pain free unless he lifts a heavy obje…

View all 5 citing cases →

Cases cited in this decision · 9 of 9 shown

Czatyrko v Edith Cowan University
[2005] HCA 14 Para 1

…following passage from the joint judgment of the High Court (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ) in Czatyrko v Edith Cowen University [2005] HCA 14; (2005) 214 ALR 349; (2005) 79 ALJR 839 at [12]:…
Owners - Strata Plan 156 v Gray
[2004] NSWCA 304 Para 1

…His Honour referred the court to a number of cases of which it is only necessary to refer in detail to one, namely, Owners - Strata Plan 156 v Gray [2004] NSWCA 304. In that case the plaintiff had fallen and injured her ankle. She presented approximately ten months after the accident with ongoing pain, mainly later…
TNT Australia Pty Ltd v Christie
[2003] NSWCA 47 Para 1

…sent case: Jakovich Transport and Earthmoving Pty Limited v Spiral Tubemakers Pty Limited (2000) 31 MVR 141, and TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. However, I do not find any assistance in these authorities as they both depend, as does the present case, on its own facts and ci…
Dell v Dalton
[1991] NSWCA 76 Para 1

…s essentially a discretionary judgment, sets a high bar which an appellant must overcome in order to justify appellate intervention: cf Dell v Dalton (1991) 23 NSWLR 528 at 533G - 534B per Handley JA, with whom Kirby P and Priestley JA agreed. However, that bar has been overcome in the present case. In my opinion the…
Podbrebersek v Australian Iron & Steel Pty Ltd
[1985] HCA 34 Para 1

…well as the principles applicable to such an assessment are those referred to by the High Court in Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492. At 493-4 the Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) in a joint judgment observed that a finding on a question of…
Miller v Jennings
[1954] HCA 65 Para 1

…At 718 Priestley JA referred to the following passage from the joint judgment of Dixon CJ and Kitto J in Miller v Jennings (1954) 92 CLR 190 at 197:…
Evans v Bartlam
[1940] HCA 27 Para 1

…sed upon us that this Court should not interfere with the primary judge's assessment given what Dixon J had said in Lee Transport Co Limited v Watson (1940) 64 CLR 1 at 13 (cited by Priestley JA in Moran at 716-717) to the effect that a court should not interfere in an assessment such as that involved in determini…
House v R
[1936] HCA 40

…"In my opinion, to apply the language of the majority in House v The King (1936) 55 CLR 499 at 505, upon the facts Judge Graham's decision that the severity of the non-economic loss suffered by the plaintiff as 33 percent of a most extreme case was so unreasonable and plainly unjust that it must be inferred that in…
House v The King
63 WN 176

…"In my opinion, to apply the language of the majority in House v The King (1936) 55 CLR 499 at 505, upon the facts Judge Graham's decision that the severity of the non-economic loss suffered by the plaintiff as 33 percent of a most extreme case was so unreasonable and plainly unjust that it must be inferred that in some w…

Legislation cited in this decision · 2

Civil Liability Act 2002 (TAS)
1 mention (from Para 1)
Workers Compensation Act 1987 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Clarence Valley Council v Macpherson [2011] NSWCA 422
Hearing dates:	24 November 2011
Decision date:	22 December 2011
Before:	Young JA at 1; Sackville AJA at 2; Tobias AJA at 3
Decision:	(a) Appeal allowed in part; (b) Set aside the verdict and judgment of her Honour Judge Flannery SC of 16 March 2011 in the sum of $536,880.47 and substitute therefor a verdict and judgment for the respondent against the appellant in the sum of $414,207.94. (c) Each party to bear their own costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - personal injury - chainsaw - host employer - labour hire company - existence of duty of care - breach of duty of care - apportionment - assessment of damages - non economic loss - past economic loss - future economic loss - past attendant care services
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987
Cases Cited:	Czatyrko v Edith Cowen University [2005] HCA 14; (2005) 214 ALR 349; (2005) 79 ALJR 839 Dell v Dalton (1991) 23 NSWLR 528 Jakovich Transport and Earthmoving Pty Limited v Spiral Tubemakers Pty Limited (2000) 31 MVR 141 Kurrie v Azouri (1998) 28 MR 406 Lee Transport Co Limited v Watson (1940) 64 CLR 1 Moran v McMahon [1985] 3 NSWLR 700 Miller v Jennings (1954) 92 CLR 190 Owners - Strata Plan 156 v Gray [2004] NSWCA 304 Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 Sherwood v Guneser (1992) 110 FLR 459 TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Category:	Principal judgment
Parties:	Appellant: CLARENCE VALLEY COUNCIL Respondent: Robert John MACPHERSON
Representation:	Counsel: Appellant: P G Mahony SC/ S E McCarthy Respondent: S G Campbell SC/ R Harrington Solicitors: Appellant: DLA Piper Respondent: Lee Sames Egan
File Number(s):	CA 2011/119744
Decision under appeal	Date of Decision: 2011-03-16 00:00:00 Before: Flannery DCJ File Number(s): 2010/101487