Eire Contractors Pty Ltd v O'Brien - [2012] NSWCA 400

Court of Appeal

New South Wales

Case Title: Eire Contractors Pty Ltd v O'Brien

Medium Neutral Citation: [2012] NSWCA 400

Hearing Date(s): 6 August 2012

Decision Date: 11 December 2012

Before: McColl JA (at [1]); Barrett JA (at [2]); Preston CJ of LEC (at [188])

Decision:
1. Appeal dismissed.
2. Order that the appellant pay the costs of both the first respondent and the second respondent.
3. Direct that any application by the appellant for setting aside or variation of the costs order be made in accordance with the rules.

[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: NEGLIGENCE - duty of care - breach of duty - workplace accident - whether facts found by judge adequate to support findings of negligence and decisions on apportionment between tortfeasors and absence of contributory negligence - NEGLIGENCE - damages - future economic loss - whether findings on likely time of return to work and quantification of lost earnings supportable - whether award for non-economic loss should be increased to reflect current prescribed damages - EVIDENCE - workplace accident report - no evidence of authorship - whether report admissible - whether admitted "only against" one defendant

Legislation Cited: Civil Liability Act 2002
Evidence Act 1995
Law Reform (Miscellaneous Provisions) Act 1946.

Cases Cited: Australian Securities and Investments Commission v Vines [2003] NSWSC 995; (2003) 48 ACSR 282
Clarence Valley Council v Macpherson [2011] NSWCA 442
House v R [1936] HCA 40; (1936) 55 CLR 499
Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422
Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352
Marsland v Andjelic (1993) 31 NSWLR 162
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40

Category: Principal judgment

Parties: Eire Contractors Pty Limited - Appellant
Luke O'Brien - First Respondent
Reed Constructions Australia Pty Limited - Second Respondent

Representation

- Counsel: R S Sheldon SC - Appellant
P J Doherty SC/P Biggins/D C Morgan - First Respondent
J E Sexton SC/C A Mulvey - Second Respondent

- Solicitors: McCabe Terrill Lawyers - Appellant
Whitelaw McDonald - First Respondent
Kennedys Lawyers - Second Respondent

File Number(s): 2010/134538

Decision Under Appeal

- Before: Colin O'Connor DCJ

- Date of Decision: 07 October 2011

- Citation: No citation

- Court File Number(s): 2010/134538

JUDGMENT

McCOLL JA: I agree with Barrett JA's reasons and the orders his Honour proposes.
BARRETT JA: As at May 2007, the first respondent, Mr Luke O'Brien, was employed by a "labour hire" company ("Christies")…

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.

Keep reading for free

Create a free CaseChat account to read Eire Contractors Pty Ltd v O'Brien and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWCA 400
Decision Date: 11 December 2012

CaseChat Overview and Summary

Eire Contractors Pty Ltd appealed to the Court of Appeal of New South Wales against findings of negligence and awards of damages made by a trial judge. The dispute arose from a workplace accident in which the first respondent, Mr O'Brien, sustained injuries. The appellant contended that the findings of negligence and the apportionment of liability were not supported by the facts found by the trial judge, and that the trial judge erred in finding no contributory negligence on the part of Mr O'Brien. Furthermore, the appellant challenged the trial judge's findings regarding future economic loss and the quantum of non-economic loss.

The Court of Appeal was required to determine whether the trial judge's findings of fact were sufficient to support the conclusions of negligence against Eire Contractors Pty Ltd and the apportionment of liability between the tortfeasors. It also had to consider whether the trial judge erred in law by failing to find contributory negligence. Additionally, the court was tasked with assessing whether the trial judge's findings concerning Mr O'Brien's likely return to work and the quantification of his lost earnings were sustainable, and whether the award for non-economic loss should have been increased to reflect current prescribed damages. The admissibility of a workplace accident report, the authorship of which was not proven, was also a point of contention.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings. The court reasoned that the facts found by the trial judge adequately supported the conclusions of negligence and the apportionment of liability. The absence of contributory negligence was also affirmed. The court found that the trial judge's assessments of future economic loss and non-economic loss were sound and did not warrant alteration. The appeal was dismissed with costs ordered in favour of both the first and second respondents.

Orders

Orders of the court

1. Appeal dismissed.

2. Order that the appellant pay the costs of both the first respondent and the second respondent.

3. Direct that any application by the appellant for setting aside or variation of the costs order be made in accordance with the rules.

[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

Full text does not contain this section.

Decision

Reasons for decision

PRESTON CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: PRESTON CJ

Full text does not contain this section.

Case Title:	Eire Contractors Pty Ltd v O'Brien
Medium Neutral Citation:	[2012] NSWCA 400
Hearing Date(s):	6 August 2012
Decision Date:	11 December 2012
Before:	McColl JA (at [1]); Barrett JA (at [2]); Preston CJ of LEC (at [188])
Decision:	1. Appeal dismissed. 2. Order that the appellant pay the costs of both the first respondent and the second respondent. 3. Direct that any application by the appellant for setting aside or variation of the costs order be made in accordance with the rules. [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:	NEGLIGENCE - duty of care - breach of duty - workplace accident - whether facts found by judge adequate to support findings of negligence and decisions on apportionment between tortfeasors and absence of contributory negligence - NEGLIGENCE - damages - future economic loss - whether findings on likely time of return to work and quantification of lost earnings supportable - whether award for non-economic loss should be increased to reflect current prescribed damages - EVIDENCE - workplace accident report - no evidence of authorship - whether report admissible - whether admitted "only against" one defendant
Legislation Cited:	Civil Liability Act 2002 Evidence Act 1995 Law Reform (Miscellaneous Provisions) Act 1946.
Cases Cited:	Australian Securities and Investments Commission v Vines [2003] NSWSC 995; (2003) 48 ACSR 282 Clarence Valley Council v Macpherson [2011] NSWCA 442 House v R [1936] HCA 40; (1936) 55 CLR 499 Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 Marsland v Andjelic (1993) 31 NSWLR 162 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Category:	Principal judgment
Parties:	Eire Contractors Pty Limited - Appellant Luke O'Brien - First Respondent Reed Constructions Australia Pty Limited - Second Respondent
Representation
- Counsel:	R S Sheldon SC - Appellant P J Doherty SC/P Biggins/D C Morgan - First Respondent J E Sexton SC/C A Mulvey - Second Respondent
- Solicitors:	McCabe Terrill Lawyers - Appellant Whitelaw McDonald - First Respondent Kennedys Lawyers - Second Respondent
File Number(s):	2010/134538
Decision Under Appeal
- Before:	Colin O'Connor DCJ
- Date of Decision:	07 October 2011
- Citation:	No citation
- Court File Number(s):	2010/134538