Ensec Pty. Limited (In liquidation) . Hawkins and Anor

The appeal concerned a claim for negligence brought by an employee against their employer, Ensec Pty. Limited (in liquidation), and a cross-claim by Ensec against a third party, Mr. Hawkins. The dispute arose from injuries sustained by the employee during the course of their employment. The Court of Appeal was required to consider whether the trial judge had erred in finding negligence and in the apportionment of liability.

The primary legal issues before the Court of Appeal were whether the trial judge was entitled to find negligence based on "common experience" without specific expert evidence, the nature of an employer's non-delegable duty of care to an employee when engaging independent contractors, and the adequacy of the trial judge's reasons for judgment. Additionally, the court had to determine the proper application of section 5(c) of the Law Reform (Miscellaneous Provisions) Act 1946 regarding the apportionment of liability.

The Court of Appeal reasoned that while an employer owes a non-delegable duty of care to its employees, the engagement of an independent contractor does not automatically absolve the employer of all responsibility. The court found that the trial judge's reliance on "common experience" to establish negligence was permissible in the circumstances, but scrutinised the adequacy of the reasons provided. The court also considered the extent to which the employer's liability could be reduced by the actions of the independent contractor, applying the principles of contribution and indemnity.

The appeal and cross-appeal were allowed in part and dismissed in part. The orders of the trial judge were set aside in part, and a verdict and judgment were entered for the plaintiff against the defendant. The court further ordered the cross-defendant to indemnify the second respondent in respect of the verdict and to pay the second respondent's costs. The appellant was ordered to pay the costs of the appeal and cross-appeal.