Eptec Pty Ltd v Alaee

Case [2014] NSWCA 390

Court of Appeal

New South Wales
Case Title: Eptec Pty Ltd v Alaee
Medium Neutral Citation: [2014] NSWCA 390
Hearing Date(s): 7 November 2014
Decision Date: 14 November 2014
Before: McColl JA at [1];
Macfarlan JA at [2];
Sackville AJA at [3]
Decision:

1. Appeal allowed.

2. Set aside Orders 1 and 2 made by the primary Judge on 20 December 2013.

3. In lieu thereof make the following orders:

(1) Judgment for the defendant.

(2) The plaintiff pay the defendant's costs.

4. The respondent pay the appellant's costs of the appeal.

5. The respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951 (NSW).

[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: MOTOR ACCIDENTS - application of s 3A of the Motor Accidents Compensation Act -primary judge erred in finding injuries suffered by respondent were a result of and caused during the driving of the vehicle - finding of liability not supported by evidence
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 3, 3A, 126
Workers Compensation Act 1987 (NSW) ss 151F, 151E, 151H
Cases Cited: Alaee v Eptec Pty Ltd (District Court (NSW), Garling ADCJ, 20 December 2013, unrep)
Alaee v Eptec Pty Ltd (District Court (NSW), Garling ADCJ, 21 August 2013, unrep)
Motor Accidents Commission v ANI Corporation Ltd (1997) 26 MVR 57
Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; 228 CLR 529
RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117; 63 MVR 375
Category: Principal judgment
Parties: Eptec Pty Ltd (Appellant)
Majid Alaee (Respondent)
Representation
- Counsel: Counsel:
GJ Parker SC / IA Todd (Appellant)
L King SC / FD Curran / T Pham (Respondent)
- Solicitors: Solicitors:
TurksLegal (Appellant)
Carters Law Firm (Respondent)
File Number(s): 2014/11649
Decision Under Appeal
- Court / Tribunal: District Court
- Before: Garling ADCJ
- Date of Decision:  20 December 2013
- Court File Number(s): 2010/100343
Publication Restriction: None

JUDGMENT

  1. McCOLL JA: I agree with Sackville AJA.

  2. MACFARLAN JA: I agree with Sackville AJA.

  3. SACKVILLE AJA: The respondent (Mr Alaee) sued the appellant (Eptec), his employer, for damages for personal injuries allegedly caused by Eptec's negligence. Mr Alaee succeeded in his claim and judgment was entered in his favour for the sum of $651,348. Eptec has appealed on the ground that his Honour erred in holding that it was liable in negligence for the injuries sustained by Mr Alaee. In the alternative, Eptec says that the primary Judge's award of damages for past and future economic loss was excessive and should be set aside.

Background

  1. Mr Alaee was injured on 9 August 2008,…

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AGLC
Eptec Pty Ltd v Alaee [2014] NSWCA 390
Case
[2014] NSWCA 390
Decision Date

CaseChat Overview and Summary

The appeal concerned a decision of the primary judge in the District Court of New South Wales, which found Eptec Pty Ltd liable to Mr Alaee in damages for negligence arising from injuries sustained during the operation of an elevated work platform (EWP). Eptec appealed this finding of liability and, alternatively, the quantum of damages awarded.

The central legal issues before the Court of Appeal were whether the primary judge erred in concluding that Mr Alaee's injuries were caused by the fault of the EWP driver in the use or operation of the vehicle, and whether those injuries were a result of and caused during the driving of the vehicle, as required by section 3A of the Motor Accidents Compensation Act. Eptec also contended that the evidence did not support the primary judge's factual findings, particularly regarding the intention to move the EWP and the engagement of its controls.

The Court of Appeal allowed the appeal, finding that the primary judge's conclusion that the injuries were caused by the fault of the driver in the use or operation of the vehicle was not supported by the evidence. The court noted that the primary judge had made findings of fact, including that Mr Alaee was not the operator of the EWP at the time of the accident, but that his co-worker was. However, the court determined that the factual findings did not establish that the injuries sustained by Mr Alaee were a result of and caused during the driving of the vehicle, a necessary element for liability under the relevant legislation.

Consequently, the Court of Appeal set aside the primary judge's orders for judgment in favour of Mr Alaee and his costs, and ordered that judgment be entered for Eptec, with Mr Alaee to pay Eptec's costs. The court also ordered that Mr Alaee pay Eptec's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside Orders 1 and 2 made by the primary Judge on 20 December 2013.

3. In lieu thereof make the following orders:

(1) Judgment for the defendant.

(2) The plaintiff pay the defendant's costs.

4. The respondent pay the appellant's costs of the appeal.

5. The respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951 (NSW).

[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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In a judgment delivered on 21 August 2013, the primary Judge found that Mr Alaee satisfied all three requirements and thus Eptec was liable to him in damages for negligence: Alaee v Eptec Pty Ltd (District Court (NSW), Garling ADCJ, 21 August 2013, unrep) (Liability Judgment). In a separate judgment, the primary Judge assessed damages at $651,348, including $170,000 for past economic loss and $175,000 for future economic loss: Alaee v Eptec Pty Ltd (District Court (NSW), Garling ADCJ, 20 December 2013, unrep) (Damages Judgment). Eptec has appealed against the primary Judge's decision. Its principal contentions are that:(a)on the factual findings made in the Liability Judgment, his Honour erred in concluding that the injuries to Mr Alaee had been caused by the fault of the driver of the EWP in the use or operation of the vehicle;(b)alternatively, on the findings made by the primary Judge, his Honour erred in concluding that the injuries sustained by Mr Alaee were a result of and were caused during the driving of the vehicle;(c)in any event, the evidence could not support the primary Judge's factual findings, in particular the finding that at the time the accident occurred Mr Alaee's co-worker was intending to drive the EWP to a new area and had engaged the instruments on the console to move the stationary vehicle forward; and(d)if the appeal on liability fails, the damages awarded to Mr Alaee for past and future economic loss were excessive and should be reassessed. The primary Judge found that painting work was done on each side of the Spirit of Tasmania when it was in dry dock. Large concrete platforms ran alongside the vessel, at two levels. Machinery such as EWPs was operated from the concrete platforms. The practice was to allocate two men to each EWP. One had to operate the machine and also perform painting work; the other did only painting work on the vessel. The operator of the machine required a licence. On the day of the accident the bucket was raised about 40 metres above the concrete platform. In this position, the bucket began to shake badly, causing Mr Alaee to become alarmed. The co-worker brought the bucket down so that it could be inspected by a mechanic, who gave the all clear for Mr Alaee and his co-worker to resume operations. They thereupon again ascended in the bucket and resumed painting for a short period. At that point, the primary Judge said: "they wanted to move the machine. The driver could not move the machine, said he did not know what was wrong, it was shaking. [Mr Alaee] asked him to go down several times. The driver just held onto the console. The basket started to go down, it was shaking. When near to the ground [Mr Alaee] pushed the red button. The basket was still shaking violently. The extendable arm was not retracting as it should when they are going down. It is not only shaking but it was making noises. [Mr Alaee] smashed into a pipe on the basket, eventually passing out." The primary Judge next resolved a factual dispute as to whether Mr Alaee or his co-worker was operating the EWP at the time of the accident. His Honour accepted Mr Alaee's evidence that he was not the operator, but that his co-worker was.

Ratio Decidendi

Legal Principle Established

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