Coote v S & P Jackson Pty Ltd - [2014] NSWCA 385

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Coote v S & P Jackson Pty Ltd [2014] NSWCA 385
Hearing dates: 3 October 2014
Decision date: 10 November 2014
Before: Macfarlan JA at [1];
Barrett JA at [53];
Leeming JA at [54]
Decision:
Appeal dismissed with costs.
[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 - appellant injured when workbox in which he was standing fell to the ground while suspended from crane - whether evidence established cause of accident - whether primary judge erred in favouring hypothesis of one expert over the other - whether accident could have been avoided by exercise of reasonable care - causative negligence not proved
PRACTICE AND PROCEDURE - pleadings - application to amend particulars of negligence on third day of trial by alleging operator error - report prepared by appellant's expert prior to hearing disclaimed causal operator error - whether primary judge erred in rejecting application - whether proposed particulars supported by evidence - appeal dismissed
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Condos v Clycut Pty Ltd [2009] NSWCA 200
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Luxton v Vines [1952] HCA 19; 85 CLR 352
Minogue v Rudd [2013] NSWCA 345
Category: Principal judgment
Parties: Matthew Coote (Appellant)
S & P Jackson Pty Ltd (Respondent)
Representation: Counsel:
I D Roberts SC/I Todd (Appellant)
K P Rewell SC/O J Dinkha (Respondent)
Solicitors:
Slater & Gordon Lawyers (Appellant)
Curwoods Lawyers (Respondent)

File Number(s): CA 2013/345666
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-10-18 00:00:00

Before:

Gibson DCJ

File Number(s):

DC 2011/271642

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2006 Mr Matthew Coote, the appellant, was employed by Boral Construction Materials Group Ltd ("Boral") as a plant operator at an asphalt batching plant in Coffs Harbour. In about June 2006, Boral contracted with the respondent to provide a 15 tonne Tadano crane and related equipment in order to clear a blocked dust extraction unit located at the plant some 15 metres above ground level.

On 17 June 2006 the crane lifted a workbox containing Mr Coote and an employee of the respondent, Mr Currie, to the height of the dust extraction unit. The crane was being operated by another employee of the respondent, Mr French. The workbox had been suspended for between 30 and 45 minutes when Mr Coote requested that the box be lowered by one…

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 Coote v S & P Jackson Pty Ltd

Details

AGLC: Coote v S & P Jackson Pty Ltd [2014] NSWCA 385
Case: [2014] NSWCA 385
Decision Date: 10 November 2014

CaseChat Overview and Summary

The appellant, Coote, appealed to the Court of Appeal of New South Wales against a decision of the primary judge who dismissed his claim for damages for personal injury. The appellant sustained injuries when a workbox, in which he was standing, fell to the ground while suspended from a crane. The respondent was S & P Jackson Pty Ltd.

The appeal raised two principal legal issues. Firstly, whether the primary judge erred in favouring the expert evidence of the respondent over that of the appellant regarding the cause of the accident, and whether the accident could have been avoided by the exercise of reasonable care. Secondly, the appeal concerned whether the primary judge erred in rejecting an application to amend the particulars of negligence on the third day of the trial to allege operator error, and whether such proposed particulars were supported by the evidence.

The Court of Appeal found no error in the primary judge's assessment of the expert evidence. The primary judge had carefully considered the conflicting expert reports and concluded that the evidence did not establish that operator error was the cause of the accident, nor that the accident could have been avoided by reasonable care. Furthermore, the Court held that the primary judge was correct to refuse the application to amend the particulars of negligence, as the proposed allegations of operator error were not supported by the evidence available at that stage of the trial, particularly given a prior expert report from the appellant's own expert had disclaimed causal operator error.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Coote v S & P Jackson Pty Ltd [2014] NSWCA 385
Hearing dates:	3 October 2014
Decision date:	10 November 2014
Before:	Macfarlan JA at [1]; Barrett JA at [53]; Leeming JA at [54]
Decision:	Appeal dismissed with costs. [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 - appellant injured when workbox in which he was standing fell to the ground while suspended from crane - whether evidence established cause of accident - whether primary judge erred in favouring hypothesis of one expert over the other - whether accident could have been avoided by exercise of reasonable care - causative negligence not proved PRACTICE AND PROCEDURE - pleadings - application to amend particulars of negligence on third day of trial by alleging operator error - report prepared by appellant's expert prior to hearing disclaimed causal operator error - whether primary judge erred in rejecting application - whether proposed particulars supported by evidence - appeal dismissed
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Condos v Clycut Pty Ltd [2009] NSWCA 200 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Luxton v Vines [1952] HCA 19; 85 CLR 352 Minogue v Rudd [2013] NSWCA 345
Category:	Principal judgment
Parties:	Matthew Coote (Appellant) S & P Jackson Pty Ltd (Respondent)
Representation:	Counsel: I D Roberts SC/I Todd (Appellant) K P Rewell SC/O J Dinkha (Respondent) Solicitors: Slater & Gordon Lawyers (Appellant) Curwoods Lawyers (Respondent)
File Number(s):	CA 2013/345666
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2013-10-18 00:00:00 Before: Gibson DCJ File Number(s): DC 2011/271642