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Cobcroft v Aggcon Pty Ltd

Cobcroft v Aggcon Pty Ltd

Case [2011] NSWSC 1287 3 November 2011

Negligence

Breach of Contract

Compensatory Damages

Contributory Negligence

Joint and Several Liability

Tort Law

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Cobcroft v Aggcon Pty Ltd & Anor [2011] NSWSC 1287
Hearing dates: 6-9/06/2011
Decision date: 03 November 2011
Jurisdiction: Common Law
Before: Fullerton J
Decision:
1. Verdict for the plaintiff in the sum of $1,356,453 for which Curtis Barrier is liable for 75 per cent.
2. Judgment for the plaintiff against Curtis Barrier in the sum of $1,017,339.
3. Judgment for the plaintiff against Aggcon in the sum of $706,667.
4. Curtis Barrier's cross claim is dismissed.
5. Judgment for Aggcon in its cross claim against Curtis Barrier in the sum of $136,055.
6. Curtis Barrier is to pay the plaintiff's costs assessed on the ordinary basis.
7. Curtis Barrier is to pay Aggcon's costs of the cross claim.

Catchwords: NEGLIGENCE - claim for work injury damages under Workers Compensation Act - whether claim for damages is assessable under Motor Accidents Compensation Act - claim for damages in negligence under the Civil Liability Act - employer's non-delegable duty of care to provide safe system of work - defendants' liability as joint and several tortfeasors - contributory negligence - contribution and/or indemnity between joint and several tortfeasors - breach of contract - foreseeable risk of injury
Legislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Fox v Wood [1981] HCA 41; 148 CLR 438
Havas v Standard Knitting Mills Pty Ltd [2001] NSWCA 295; 52 NSWLR 293
I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486
JA and BM Bowden Pty Ltd v Doughty [2009] NSWCA 82
Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270
Lepore v State of New South Wales [2001] NSWCA 112; 52 NSWLR 420
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1
Williams v Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098
Category: Principal judgment
Parties: Peter Cobcroft (Plaintiff)
Aggcon Pty Ltd (1st Defendant)
Curtis Barrier Pty Ltd (2nd Defendant)
Representation: MJ Cranitch SC/AD Campbell (Plaintiff)
GJ Parker (1st Defendant)
AB Parker (2nd Defendant)
Gerard Malouf & Partners (Plaintiff)
Moray & Agnew (1st Defendant)
Walker Hedges & Co (2nd Defendant)

File Number(s): 2009/338564

Judgment

Background

HER HONOUR : By amended statement of claim dated 6 July 2011 the plaintiff brings proceedings in…

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 Cobcroft v Aggcon Pty Ltd

Details

AGLC: Cobcroft v Aggcon Pty Ltd [2011] NSWSC 1287
Case: [2011] NSWSC 1287
Decision Date: 03 November 2011

CaseChat Overview and Summary

Cobcroft sought compensation from Aggcon Pty Ltd for injuries sustained during his employment, claiming damages under the Workers Compensation Act, Motor Accidents Compensation Act, and Civil Liability Act. He alleged that his employer had breached its non-delegable duty to provide a safe system of work, and that the defendants were liable as joint and several tortfeasors. The defendants argued that the claim should be assessed under the Motor Accidents Compensation Act, and that Cobcroft's contributory negligence should reduce their liability. They also sought contribution and/or indemnity from each other.

The primary legal issues revolved around the applicability of various compensation Acts to the claim, the employer's non-delegable duty of care, and the defendants' potential liability as joint and several tortfeasors. The court had to determine whether the injury was covered by the Motor Accidents Compensation Act, the Workers Compensation Act, or the Civil Liability Act, and whether the employer's breach of the non-delegable duty of care made the defendants jointly and severally liable. Additionally, the court had to consider the impact of Cobcroft's contributory negligence on the defendants' liability, and whether contribution and/or indemnity was appropriate between the joint and several tortfeasors.

The court held that Cobcroft's claim fell under the Civil Liability Act, not the Motor Accidents Compensation Act or the Workers Compensation Act. It was established that the employer owed a non-delegable duty of care to provide a safe system of work, and that this duty was breached. As a result, the defendants were found to be jointly and severally liable. The court also found that Cobcroft's contributory negligence reduced the defendants' liability, but did not absolve them entirely. Finally, the court ordered that the defendants were to pay contribution and/or indemnity to each other in accordance with the provisions of the Civil Liability Act.

The court ordered that Aggcon Pty Ltd and the other defendants were to pay Cobcroft compensation for his injuries, reduced by his contributory negligence. The defendants were to pay contribution and/or indemnity to each other in accordance with the provisions of the Civil Liability Act.

Orders