Concrite Pty Ltd v Rogerson - [2002] NSWCA 310

CITATION: CONCRITE PTY LTD v ROGERSON [2002] NSWCA 310

FILE NUMBER(S): CA 40978/01

HEARING DATE(S): 10 September 2002

JUDGMENT DATE:
18 September 2002

PARTIES :

Concrite Pty Ltd - Appellant
Bruce Rogerson - Respondent

JUDGMENT OF: Handley JA at 1; Sheller JA at 2; Young CJ in Eq at 27

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 4578/00

LOWER COURT
JUDICIAL OFFICER : Gibb DCJ

COUNSEL: J D Hislop QC/N C Chen - Appellant
P Webb QC/S Stewart- Respondent

SOLICITORS: Sparke Helmore - Appellant
Rishworth Dodd & Co - Respondent

CATCHWORDS: NEGLIGENCE - causation - internal inconsistencies in trial Judge's reasoning - many contributing factors - misapplication of onus of proof - failure to give reasons - assessment of damages - new trial ordered

LEGISLATION CITED: Workers Compensation Act 1987
Workers Compensation (Benefits) Amendment Act 1991

CASES CITED:
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158

DECISION: 1. Appeal allowed; 2. Set aside the verdict and judgment for the respondent given and entered by her Honour Judge Gibb on 26 November 2001; 3. Remit the proceedings to the District Court for a new trial limited to the question of damages; 4. Judgment for the appellant by way of restitution in the amount of $141,000 paid by the appellant to the respondent as a term of the stay of execution of the judgment together with interest thereon from the date of payment to the date of repayment; 5. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 6. The costs of the first trial be in the discretion of the Judge who hears the new trial.

CA 40978/01
DC 4578/00

HANDLEY JA
SHELLER JA
YOUNG CJ in EQ

CONCRITE PTY LTD v ROGERSON

The defendant appealed against the decision of Judge Gibb given on 26 November 2001, in which her Honour awarded the plaintiff damages of approximately $326,000 after he sustained injuries in the course of his employment.

The plaintiff was injured while working in the employment of the defendant as a permanent casual driver of a concrete truck. While attempting to clean the chute on the back of the truck he lost his balance and fell. He suffered injury in the accident the basis of the claim. The trial Judge found that the accident resulted from the defendant's negligence in failing to provide a safe system of work and failing to train the plaintiff in an appropriate method for cleaning out the chute.

Four grounds of appeal related to the trial Judge's reasoning process as to causation and its internal inconsistency, her Honour's misapplication of the onus of proof and her failure to give reasons. The further grounds were that the damages awarded were excessive and in particular that the trial Judge erred in her assessment of the cause of any impairment of work capacity and of damages for non-economic loss.

The plaintiff suffered from…

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 Concrite Pty Ltd v Rogerson

Details

AGLC: Concrite Pty Ltd v Rogerson [2002] NSWCA 310
Case: [2002] NSWCA 310
Decision Date: 18 September 2002

CaseChat Overview and Summary

Concrite Pty Ltd appealed to the New South Wales Court of Appeal against a judgment of the District Court, presided over by Judge Gibb, which found Concrite Pty Ltd liable in negligence to the respondent, Mr Rogerson. The dispute concerned the assessment of damages awarded to Mr Rogerson.

The Court of Appeal was required to determine whether the trial judge’s reasoning contained internal inconsistencies, whether there were multiple contributing factors to the respondent's loss, whether the onus of proof had been misapplied, and whether the trial judge had failed to provide adequate reasons for her decision, particularly in relation to the assessment of damages.

The Court of Appeal found that the trial judge's reasons for judgment were inadequate and contained inconsistencies, particularly concerning the assessment of damages and the application of the onus of proof in relation to causation. The court concluded that these deficiencies meant the verdict and judgment could not stand. Consequently, the appeal was allowed, the original verdict and judgment were set aside, and the proceedings were remitted to the District Court for a new trial limited to the assessment of damages. The appellant was also granted judgment for the restitution of $141,000 paid as a condition of a stay of execution, together with interest.

Orders

Orders of the court

1. Appeal allowed; 2. Set aside the verdict and judgment for the respondent given and entered by her Honour Judge Gibb on 26 November 2001; 3. Remit the proceedings to the District Court for a new trial limited to the question of damages; 4. Judgment for the appellant by way of restitution in the amount of $141,000 paid by the appellant to the respondent as a term of the stay of execution of the judgment together with interest thereon from the date of payment to the date of repayment; 5. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 6. The costs of the first trial be in the discretion of the Judge who hears the new trial.

Background

Background to the litigation

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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:	CONCRITE PTY LTD v ROGERSON [2002] NSWCA 310
FILE NUMBER(S):	CA 40978/01
HEARING DATE(S):	10 September 2002
JUDGMENT DATE:	18 September 2002
PARTIES :	Concrite Pty Ltd - Appellant Bruce Rogerson - Respondent
JUDGMENT OF:	Handley JA at 1; Sheller JA at 2; Young CJ in Eq at 27

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	4578/00
LOWER COURT JUDICIAL OFFICER :	Gibb DCJ

COUNSEL:	J D Hislop QC/N C Chen - Appellant P Webb QC/S Stewart- Respondent
SOLICITORS:	Sparke Helmore - Appellant Rishworth Dodd & Co - Respondent
CATCHWORDS:	NEGLIGENCE - causation - internal inconsistencies in trial Judge's reasoning - many contributing factors - misapplication of onus of proof - failure to give reasons - assessment of damages - new trial ordered
LEGISLATION CITED:	Workers Compensation Act 1987 Workers Compensation (Benefits) Amendment Act 1991
CASES CITED:	Purkess v Crittenden (1965) 114 CLR 164 Watts v Rake (1960) 108 CLR 158
DECISION:	1. Appeal allowed; 2. Set aside the verdict and judgment for the respondent given and entered by her Honour Judge Gibb on 26 November 2001; 3. Remit the proceedings to the District Court for a new trial limited to the question of damages; 4. Judgment for the appellant by way of restitution in the amount of $141,000 paid by the appellant to the respondent as a term of the stay of execution of the judgment together with interest thereon from the date of payment to the date of repayment; 5. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 6. The costs of the first trial be in the discretion of the Judge who hears the new trial.