El Debal v Network Welding Pty Ltd (In Liq) - [2007] NSWDC 161

CITATION: El Debal v Network Welding Pty Ltd (In Liq) [2007] NSWDC 161

HEARING DATE(S): 13, 14, and 15 February and 9 May 2007

JUDGMENT DATE:
11 May 2007

JURISDICTION: District Court - Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: In respect of the accident on 15 April 2000: Judgment for the plaintiff against Network Welding Pty Ltd for $461,575.80, Judgment for the plaintiff against Kari & Ghossayn Pty Limited for $481,355.80, Judgment for Kari & Ghossayn Pty Limited against Network Welding Pty Ltd for $92,315.16, Judgment for Network Welding Pty Ltd against Kari & Ghossayn Pty Limited for $369,260.64; in respect of the accident on 2 May 2000: Judgment for the plaintiff against Network Welding Pty Ltd for $417,054.60, Judgment for the plaintiff against Abigroup Pty Limited for $551,675.52, Judgment for Abigroup Pty Limited against Network Welding Pty Ltd for $83,410.92, Judgment for Network Welding Pty Ltd against Abigroup Pty Limited for $333,643.68; in respect of the motor accident on 18 October 2000: Judgment for the plaintiff against Ms Darke for $187,249.86; the defendants are to pay the plaintiff's costs of the re-trial, as agreed or asessed, on the ordinary basis; Ms Darke is to pay the plaintiff's costs of the first trial, save for those costs that relate to the application under s 61(4) of the Motor Accidents Compensation Act 1999, as agreed or assessed, on the ordinary basis

CATCHWORDS: Negligence - three separate incidents, two at the workplace and the third in a motor accident - plaintiff employed by a body hire company, injured at premises of hirers - new trial directed by Court of Appeal on contributory negligence, contribution between the four defendants, and damages - apportionment of responsibility - Workers Compensation - application of s 151Z and adjustments required to the recoverable damages - Damages - different injuries in each accident, involving the right shoulder, lower back and neck, complicated by a secondary psychiatric condition - attribution of loss of earning capacity to specific injuries

LEGISLATION CITED: Workers Compensation Act 1987 (NSW): s 151Z
Motor Accidents Compensation Act 1999

CASES CITED: Darke v El Debal [2006] NSWCA 86
TNT Australia Pty Limited v Christie [2003] NSWCA 47 at [67]

PARTIES: Khaled El Debal (Plaintiff)
Network Welding Pty Limited (In Liquidation) (Defendant in the first action)
Kari & Ghossayn Pty Limited (First defendant in the second action)
Abigroup Pty Limited (Second defendant in the second action)
Michelle Darke (Defendant in the third action)

FILE NUMBER(S): 8848/01; 3576/02; 4591/03

COUNSEL: Mr R McIlwaine SC and Mr D Toomey (El Debal)
Mr H Halligan (Network Welding Pty Ltd)
Mr S Finnane (Kari & Ghossayn Pty Limited)
Mr F Doak (Abigroup Pty Limited)
Mr D J Cutler (Ms Darke)

SOLICITORS: Carroll & O'Dea (El Debal)
Nevill & Edwards (Network Welding Pty Ltd)
Pricewaterhousecoopers Legal (Kari & Ghossayn Pty Limited)
Wotton & Kearney (Abigroup Pty Limited)
Ferguson Holz (Ms Darke)

JUDGMENT
Introduction

1. In 2000 Mr El Debal was injured in three separate accidents. At the time of…

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] NSWDC 161
Decision Date: 11 May 2007

CaseChat Overview and Summary

The case of El Debal v Network Welding Pty Ltd (In Liq) involved the plaintiff, El Debal, who was injured in three separate incidents. The first two incidents occurred at the workplace, where El Debal was employed by a body hire company. The third incident was a motor accident. The defendants included Network Welding Pty Ltd, Kari & Ghossayn Pty Limited, and Abigroup Pty Limited, who were all connected to the workplace incidents, as well as Ms Darke, who was responsible for the motor accident. The primary issues before the court were contributory negligence, contribution between the defendants, and the apportionment of damages. Additionally, the court had to determine the application of workers compensation provisions, specifically section 151Z, and how they affected the recoverable damages. The court also needed to attribute the loss of earning capacity to the specific injuries sustained in each incident.

The court found that the three incidents resulted in different injuries involving El Debal's right shoulder, lower back, and neck, which were further complicated by a secondary psychiatric condition. The court considered the contributory negligence of the plaintiff, the extent to which the defendants were responsible for the injuries, and how workers compensation provisions affected the damages. The court found that the defendants were liable for the injuries sustained by El Debal and directed a new trial on the issues of contributory negligence, contribution between the defendants, and damages. The court also considered the secondary psychiatric condition and its impact on the plaintiff's ability to work.

In the new trial, the court found that Network Welding Pty Ltd was liable for the first workplace incident, Kari & Ghossayn Pty Limited was liable for the second workplace incident, and Ms Darke was liable for the motor accident. The court apportioned the damages between the defendants based on their degree of fault and the extent to which they contributed to the plaintiff's injuries. The court also considered the impact of workers compensation provisions on the damages and made adjustments accordingly. The court awarded damages to the plaintiff against each of the defendants and ordered that the defendants pay the plaintiff's costs of the re-trial and the first trial, as agreed or assessed, on the ordinary basis.

The final orders of the court included judgments for the plaintiff against Network Welding Pty Ltd, Kari & Ghossayn Pty Limited, Abigroup Pty Limited, and Ms Darke for various amounts, as well as judgments for some of the defendants against each other for contribution. The court also ordered that the defendants pay the plaintiff's costs of the re-trial and the first trial, as agreed or assessed, on the ordinary basis. The court's decision provides guidance on the application of workers compensation provisions and the apportionment of damages in cases involving multiple incidents and injuries.

Orders

Orders of the court

In respect of the accident on 15 April 2000: Judgment for the plaintiff against Network Welding Pty Ltd for $461,575.80, Judgment for the plaintiff against Kari & Ghossayn Pty Limited for $481,355.80, Judgment for Kari & Ghossayn Pty Limited against Network Welding Pty Ltd for $92,315.16, Judgment for Network Welding Pty Ltd against Kari & Ghossayn Pty Limited for $369,260.64; in respect of the accident on 2 May 2000: Judgment for the plaintiff against Network Welding Pty Ltd for $417,054.60, Judgment for the plaintiff against Abigroup Pty Limited for $551,675.52, Judgment for Abigroup Pty Limited against Network Welding Pty Ltd for $83,410.92, Judgment for Network Welding Pty Ltd against Abigroup Pty Limited for $333,643.68; in respect of the motor accident on 18 October 2000: Judgment for the plaintiff against Ms Darke for $187,249.86; the defendants are to pay the plaintiff's costs of the re-trial, as agreed or asessed, on the ordinary basis; Ms Darke is to pay the plaintiff's costs of the first trial, save for those costs that relate to the application under s 61(4) of the Motor Accidents Compensation Act 1999, as agreed or assessed, on the ordinary basis

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	El Debal v Network Welding Pty Ltd (In Liq) [2007] NSWDC 161
HEARING DATE(S):	13, 14, and 15 February and 9 May 2007
JUDGMENT DATE:	11 May 2007
JURISDICTION:	District Court - Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	In respect of the accident on 15 April 2000: Judgment for the plaintiff against Network Welding Pty Ltd for $461,575.80, Judgment for the plaintiff against Kari & Ghossayn Pty Limited for $481,355.80, Judgment for Kari & Ghossayn Pty Limited against Network Welding Pty Ltd for $92,315.16, Judgment for Network Welding Pty Ltd against Kari & Ghossayn Pty Limited for $369,260.64; in respect of the accident on 2 May 2000: Judgment for the plaintiff against Network Welding Pty Ltd for $417,054.60, Judgment for the plaintiff against Abigroup Pty Limited for $551,675.52, Judgment for Abigroup Pty Limited against Network Welding Pty Ltd for $83,410.92, Judgment for Network Welding Pty Ltd against Abigroup Pty Limited for $333,643.68; in respect of the motor accident on 18 October 2000: Judgment for the plaintiff against Ms Darke for $187,249.86; the defendants are to pay the plaintiff's costs of the re-trial, as agreed or asessed, on the ordinary basis; Ms Darke is to pay the plaintiff's costs of the first trial, save for those costs that relate to the application under s 61(4) of the Motor Accidents Compensation Act 1999, as agreed or assessed, on the ordinary basis
CATCHWORDS:	Negligence - three separate incidents, two at the workplace and the third in a motor accident - plaintiff employed by a body hire company, injured at premises of hirers - new trial directed by Court of Appeal on contributory negligence, contribution between the four defendants, and damages - apportionment of responsibility - Workers Compensation - application of s 151Z and adjustments required to the recoverable damages - Damages - different injuries in each accident, involving the right shoulder, lower back and neck, complicated by a secondary psychiatric condition - attribution of loss of earning capacity to specific injuries
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW): s 151Z Motor Accidents Compensation Act 1999
CASES CITED:	Darke v El Debal [2006] NSWCA 86 TNT Australia Pty Limited v Christie [2003] NSWCA 47 at [67]
PARTIES:	Khaled El Debal (Plaintiff) Network Welding Pty Limited (In Liquidation) (Defendant in the first action) Kari & Ghossayn Pty Limited (First defendant in the second action) Abigroup Pty Limited (Second defendant in the second action) Michelle Darke (Defendant in the third action)
FILE NUMBER(S):	8848/01; 3576/02; 4591/03
COUNSEL:	Mr R McIlwaine SC and Mr D Toomey (El Debal) Mr H Halligan (Network Welding Pty Ltd) Mr S Finnane (Kari & Ghossayn Pty Limited) Mr F Doak (Abigroup Pty Limited) Mr D J Cutler (Ms Darke)
SOLICITORS:	Carroll & O'Dea (El Debal) Nevill & Edwards (Network Welding Pty Ltd) Pricewaterhousecoopers Legal (Kari & Ghossayn Pty Limited) Wotton & Kearney (Abigroup Pty Limited) Ferguson Holz (Ms Darke)