Darke v El Debal

[2006] NSWCA 86

NEW SOUTH WALES COURT OF APPEAL

CITATION:      DARKE v EL DEBAL; EL DEBAL v NETWORK WELDING PTY LTD (IN LIQ) ;EL DEBAL v KARI & GHOSSAYN PTY LTD [2006]  NSWCA 86

FILE NUMBER(S):
40013/2005
40186/2005
40272/2005

HEARING DATE(S):               27, 28 March 2006

DECISION DATE:     21/04/2006

PARTIES:
Michelle DARKE v Khaled EL DEBAL
Khaled EL DEBAL v NETWORK WELDING PTY LTD (in liq)
Khaled EL DEBAL v KARI & GHOSSAYN PTY LTD

JUDGMENT OF:       Mason P Santow JA McColl JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 3576/2002

LOWER COURT JUDICIAL OFFICER:     Christie ADCJ

COUNSEL:
Darke: A Robertson SC/ D J Cutler
El Debal: R S McIlwaine SC/ D R J Toomey
Network: H Halligan
Kari: R R Bartlett SC/ S Finnane
Abigroup: S A Kerr

SOLICITORS:
Darke: Ferguson Lawyers
El Debal: Carroll & O'Dea
Network: Edwards Michael
Kari: Hunt & Hunt
Abigroup: Wotton & Kearney

CATCHWORDS:
APPEAL AND NEW TRIAL – Improper admission or rejection of evidence – Failure to consider all relevant evidence – Decided points not put by counsel – Failure to address all pleaded causes of action – Failure to give reasons.
NEGLIGENCE – Employer’s duty of care – Duty to provide safe system of work – Where employer typically hires out the services of its employees – Employer to acquaint itself with the system of work in the place to which its sends its employees.
NEGLIGENCE – Construction safety – Requirement that any person who directly or by their servants or agents carries out construction work owes a duty of care – May be more than one person owing duty – Head contractor and subcontractor jointly liable – Construction Safety Regulations 1950, regs 73 and 80.
NEGLIGENCE – Motor vehicle accidents – Damages – Non-economic loss – Recoverable only where degree of permanent impairment actually greater than ten per cent – Whether recoverable if degree of permanent impairment potentially greater than 10 per cent – Medical assessor’s certificate under motor accidents compensation legislation – Provides conclusive evidence as to whether degree of permanent impairment greater than 10 per cent – Whether evidence as to potential degree of permanent impairment certifiable – Motor Accidents Compensation Act 1999, s 61(2)(a). 
NEGLIGENCE – Motor vehicle accidents – Damages – Non-economic loss – Medical assessor’s certificate under motor accidents compensation legislation – Provides conclusive evidence as to matters certified regarding degree of permanent impairment – Rejection where certificate not made in circumstances affording procedural fairness to a party – Where certifying doctor fails to consider plaintiff’s description of injuries – Procedural fairness concerned with process not outcomes – No basis for rejecting certificate established – Motor Accidents Compensation Act 1999, s 61(4).(D)

LEGISLATION CITED:
Construction Safety Regulations regs 73 and 80
Law Reform (Miscellaneous Provisions) Act 1946
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987, s151N

DECISION:
New  trial as to some issues

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40013/2005
CA 40186/2005
CA 40272/200
DC 3576/2002

MASON P
SANTOW…