CITATION: EMOLEUM (AUST) PTY LTD v Cecil Henry BOND & Ors [2004] NSWCA 352 HEARING DATE(S): 15 and 16 March 2004 JUDGMENT DATE:
29 September 2004JUDGMENT OF: Mason P at 1; Giles JA at 139; Santow JA at 144 DECISION: Appeal upheld in part. CATCHWORDS: Negligence - safe system of work - whether breach of duty - apportionment of liability amongst tortfeasors - psychiatric illness - quantum of damages - Calderbank offer. (D) PARTIES :
EMOLEUM (AUST) PTY LTD v Cecil Henry BOND & 3 Ors FILE NUMBER(S): CA 40554/01 COUNSEL: Appellant: L King SC/ G R Graham
1st/2nd: Respondent: D E Baran
3rd Respondent: J Harris SC/ W Chipchase
4th Respondent: G R TraversSOLICITORS: Appellant: Culter Hughes & Harris
1st/2nd Respondent: Carroll & O'Dea
3rd Respondent: Sparke Helmore
4th Respondent: Moray & Agnew
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 8795/99; DC 8796/99 LOWER COURT
JUDICIAL OFFICER :Dent DCJ
CA 40554/2001
DC 8795/1999
DC 8796/1999Wednesday 29 September 2004MASON P
GILES JA
SANTOW JA
EMOLEUM (AUSTRALIA) PTY LTD v Cecil BOND & 3 Ors
BACKGROUND
Two proceedings were heard concurrently in the District Court, each being a claim for psychiatric injury stemming from the death of Martin Bond. The two plaintiffs were the deceased’s father and mother.
The deceased was employed by a labour hire company, Employment Labour Services Pty Ltd (In Liq) (ELS). His services as a traffic control officer were hired out to Emoleum (Australia) Pty Ltd which was conducting road resealing operations on the Hume Highway. On 14 February 1996 Bond was killed when an aggregate spreader truck, owned and driven by Mr Baker, reversed over him. At the time of the accident Baker had been given a specific instruction by Mr Edwards, an Emoleum employee, to reverse along the route which he was driving. There were no spotters on the back of the truck at the relevant time.
Dent DCJ found that Emoleum was in breach of its duty of care by reason of the system of work that it permitted and the instruction given by Edwards. His Honour found it to be just and equitable that each of ELS and Baker should be held 20% responsible for the damage.
The appeal and cross appeal address four issues arising from the accident:
1. Emoleum and ELS submitted that they had not been negligent as the sole cause of the accident was Baker’s casual act of negligence. They submitted that there was no failure to maintain a safe system of work at the site.
2. Emoleum and Baker each contended that the apportionment of liability against them was too high.
3. Emoleum submitted that the general damages awarded were too high and that the damages awarded for economic loss were unsustainable and/or too high. ELS and Baker adopted these submissions.
4. ELS appealed in relation to costs, submitting that the trial judge had failed to have proper regard to an unaccepted settlement offer.
HELD per Mason P (Giles and Santow…
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- Case
- [2004] NSWCA 352
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether Emoleum had breached its duty of care to Mr Bond by failing to implement a safe system of work, and if so, to assess the apportionment of liability amongst the tortfeasors. The court also considered the quantum of damages awarded to Mr Bond and the effect of a *Calderbank* offer made by Emoleum.
The court found that Emoleum had breached its duty of care to Mr Bond, establishing negligence. However, it also found that Mr Bond had contributed to his own injury, leading to an apportionment of liability. The principles applied involved the established legal tests for negligence, including the foreseeability of harm and the reasonableness of precautions, as well as the principles governing the apportionment of damages under relevant legislation. The court reviewed the evidence regarding the nature and extent of Mr Bond's psychiatric illness and the causal link between his employment and his condition.
The appeal was upheld in part, indicating that the orders of the Supreme Court were varied, likely in relation to the apportionment of liability or the quantum of damages awarded.
Orders
Orders of the court
Appeal upheld in part.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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