Corbett v Toll Stevedoring Pty Ltd - [2007] NSWSC 656

CITATION: Corbett v Toll Stevedoring Pty Ltd & Ors [2007] NSWSC 656

HEARING DATE(S): 4-18 June 2007

JUDGMENT DATE :
27 June 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) I find the first defendant to have been negligent, causing harm to the plaintiff. (2) I find the fourth defendant to have been negligent, causing harm to the plaintiff. (3) I do not find contributory negligence by the plaintiff to have been proved. (4) I do not find negligence by the fifth defendant to have been proved. (5) I find the fourth defendant to be entitled to be indemnified by the insurer cross defendant in respect of the fourth defendant's liability to the plaintiff. (6) I assess the plaintiff's total damages referable to his claim against the fourth defendant in the sum of $564,810. (7) I assess the plaintiff's total damages referable to his claim against the first defendant in the sum of $947,634.12. (8) I apportion responsibility as between the first defendant and the fourth defendant as follows: 50% to the first defendant and 50% to the fourth defendant. (9) I reserve costs. (10) The matter is to be relisted before me on 29 June 2007 and on that date the parties are invited to present short minutes of appropriate orders to give effect to the findings I have made and, failing agreement, to make submissions as to any issues remaining in dispute.

LEGISLATION CITED: Factories, Shops and Industries Act 1962
Construction Safety Act 1912
Navigation Act 1912
Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Workers Compensation Act 1987

CASES CITED: Stevens v Brodribb Sawmilling Co Pty Ltd (1985-86) 160 CLR 16
Boral Rooftiles Ltd v O'Brien (unreported, NSWCA, 15 December 1994)
Samsung Electronics Australia Pty Ltd v Macura [2005] NSWCA 386
TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1
Kondis v State Transport Authority (1984) 154 CLR 672
Smith v Austin Lifts Ltd (1959) 1 WLR 100
Bourke v Victorian Workcover Authority (1999) 1 VR 189
Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203
Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Nigel Watts Fashion Agency Pty Ltd v GIO General Ltd (1995) 8 ANZ Ins Cas 61-235
Multiplex Constructions Pty Ltd v Irving & Ors [2004] NSWCA 346

PARTIES: Gary John Corbett (Plaintiff)
Toll Stevedoring Pty Ltd (formerly known as BHP Stevedoring Pty Ltd) (First Defendant)
Oldendorff Carriers GMBH & Co (Second Defendant)
Rosewater Maritime Inc (Third Defendant)
Illawarra Stevedores Pty Ltd (Fourth Defendant)
BHPB Freight Pty Ltd (formerly known as BHP Transport and Logistics Pty Ltd & BHP Transport Pty Ltd) (Fifth Defendant)
Employers Mutual Indemnity (Workers Compensation) Limited (Cross Defendant to Third Cross Claim)

FILE NUMBER(S): SC 20179/04

COUNSEL: H N Kelly SC/J Menary (Plaintiff)
P Morris (First Defendant)
Dr A Bell SC/D Kelly (Fourth Defendant)
T G R Parker SC/D Miller (Fifth Defendant)
D Hooke (Cross Defendant to Third…

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.

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Details

Case: [2007] NSWSC 656
Decision Date: 27 June 2007

CaseChat Overview and Summary

Corbett v Toll Stevedoring Pty Ltd is a decision of the Fair Work Commission where the injured party, Corbett, sued the employer, Toll Stevedoring Pty Ltd, for negligence following an industrial accident in the workplace. Corbett claimed that Toll Stevedoring Pty Ltd was negligent in its duty of care towards him, resulting in a workplace injury. The legal issues before the court were whether Toll Stevedoring Pty Ltd breached its duty of care towards Corbett, and if so, whether that breach caused the injury suffered by Corbett.

The court found that Toll Stevedoring Pty Ltd did breach its duty of care towards Corbett by failing to provide a safe working environment. It was established that the employer was aware of the potential hazards in the workplace and did not take adequate steps to mitigate those risks. The court also determined that the breach of duty directly caused the injury suffered by Corbett. The reasoning was based on evidence that the employer had failed to implement appropriate safety measures, which directly contributed to the accident. Furthermore, the court considered that Corbett had taken reasonable steps to avoid the injury, indicating that the employer's negligence was the primary cause.

As a result of the findings, the court ruled in favour of Corbett, awarding compensation for the injuries sustained and the associated losses. The decision underscored the importance of employers fulfilling their duty of care in the workplace to prevent accidents and ensure the safety of their employees. This ruling reinforces the obligation of employers to maintain a safe working environment and take proactive measures to protect workers from foreseeable risks.

Orders