Emoleum (Aust) Pty Ltd v Cecil Henry Bond

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 2004
JUDGMENT 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 Travers
SOLICITORS:	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 8796/1999

MASON P
GILES JA
SANTOW JA

Wednesday 29 September 2004

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…