De Vries v JNC Group Australia Pty Limited - [2023] NSWSC 777

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: De Vries v JNC Group Australia Pty Limited [2023] NSWSC 777
Hearing dates: 19 June 2023 - 27 June 2023
Date of orders: 05 July 2023
Decision date: 05 July 2023
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
Final orders to be brought in after further submissions

Catchwords:
NEGLIGENCE – personal injury – workplace accident –claim against labour hire company and host employer – where plaintiff was operating heavy high-pressure hosing equipment to clean out pits –where origin of injury is contested – where plaintiff received minimal training and induction – whether defendants knew or ought to have known of tripping hazard and unsafe system of work – whether precautions should have been taken in relation to reasonably foreseeable risks – apportionment of liability – parties to draft final orders in respect of out-of-pocket expenses and cross-claims

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 5B; 5D; 5E; 15
Workers Compensation Act 1987 (NSW) ss 151D; 151DA; 151Z(2)

Cases Cited:
Commonwealth Financial Planning Limited v Couper [2013] NSWCA 444
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Drew v State of New South Wales [2015] NSWCA 159
Hodge v CSR Limited [2010] NSWSC 27
Howley v Principal Finance Pty Ltd [2014] NSWCA 447
Jurox Pty Ltd v Fullick [2016] NSWCA 180
McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60
Mason v Demasi [2009] NSWCA 227
Southwest Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 98 NSWLR 1.
Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31

Category: Principal judgment
Parties: Guy Stephen de Vries (Plaintiff)
JNC Group Australia Pty Limited (First Defendant)
Jobs Australia Enterprises Limited (Second Defendant)
Representation:
Counsel:
P Morris SC / L Morgan (Plaintiff)
N Polin SC / D Talintyre (First Defenedant)
D Kelly (Second Defendant)
Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
Clyde & Co (First Defendant)
HWL Ebsworth Lawyers (Second Defendant)

File Number(s): 2015/00255613
Publication restriction: Nil

JUDGMENT

The plaintiff alleges he was injured on 13 September 2012. He says that this was the fault of the defendants; they were negligent. He seeks damages from both of them.
The second defendant, known as Speedie Staff Solutions (‘Speedy’), was a labour hire company. It provided the plaintiff to the first defendant to work as a labourer. The first defendant (‘JNC Group Australia Pty Ltd’) was responsible for the daily supervision of the plaintiff.
The action is primarily governed by the Civil Liability Act 2002 (NSW) (‘CLA’) and the Workers Compensation Act 1987 (NSW) (‘WCA’).
The defendants have denied liability to the plaintiff. They doubt there ever was an injury as alleged by the plaintiff. If liability is found, they have alleged contributory negligence and have filed a cross-claim against each other.
The plaintiff seeks damages from the first defendant under the following heads: non-economic loss, past and future economic loss, Fox v Wood damages, past and future medical expenses and past and future gratuitous care.
The damages claimed…

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: [2023] NSWSC 777
Decision Date: 05 July 2023

CaseChat Overview and Summary

In the case of De Vries v JNC Group Australia Pty Limited, the plaintiff, De Vries, was operating heavy high-pressure hosing equipment to clean out pits when he suffered an injury. De Vries brought a claim against the defendants, JNC Group Australia Pty Limited and another company, for damages arising from a workplace accident. The nature of the dispute revolves around the adequacy of training, the awareness of the tripping hazard, and the safety of the work system. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the defendants had a duty of care towards De Vries, whether they knew or ought to have known about the tripping hazard, and if they failed to take appropriate precautions in relation to reasonably foreseeable risks. Additionally, the court had to determine the apportionment of liability between the parties and the amount of damages to be awarded to De Vries.

The court found that the defendants did owe a duty of care to De Vries, given their role as the labour hire company and host employer. It was established that De Vries had received minimal training and induction before operating the equipment. The court held that the defendants knew or ought to have known about the tripping hazard and the unsafe system of work. Consequently, the defendants were found to be liable for failing to take appropriate precautions. The court apportioned liability between the parties and ordered them to draft final orders in respect of out-of-pocket expenses and cross-claims.

Orders