Ghunaim v Bart

Case [2004] NSWCA 28

Reported Decision:

 (2004) Aust Torts Reports 81-731

Court of Appeal


CITATION: Ghunaim v Bart [2004] NSWCA 28
HEARING DATE(S): 30 October 2003
JUDGMENT DATE:
24 February 2004
JUDGMENT OF: Giles JA at 1; Ipp JA at 3; McColl JA at 4
DECISION: 1. Appeal allowed. 2. Judgment below set aside. 3. In lieu thereof, verdict and judgment for the appellant in the amount of $308,862.03. 4. Parties to have liberty to apply on two days notice in respect of the calculation of the verdict and judgment, such liberty to be exercised no later than 14 days after the date of this judgment. 5. Respondent to pay the appellant's costs of the appeal.
CATCHWORDS: CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence in relation to workplace injury - principles governing contributory negligence by employees - nature of an appeal against a finding of contributory negligence - DAMAGES - nature of an appeal against award for non-economic loss - assessment of loss of earning capacity - whether actuarial evidence is required to prove a claim for loss of superannuation benefits. - D
LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9, s 10(1)
Supreme Court Act 1970 (NSW), s 75A(5)
Workers Compensation Act 1987 (NSW), s 151N(3), s 151N(4)
CASES CITED: Amaca Pty Ltd v State of New South Wales [2003] HCA 44, (2003) 77 ALJR 1509
Bankstown Foundry Proprietary Limited v Braistina [1986] HCA 20, (1986) 160 CLR 301
Beale v GIO (1997) 48 NSWLR 430
Bourke v Butterfield and Lewis Ltd [1926] HCA 38, (1927) 38 CLR 354
Carlyle v Commissioner for Railways (1954) 54 SR (NSW) 238
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Commissioner for Railways v Halley (1978) 20 ALR 409
Commissioner for Railways v Ruprecht [1979] HCA 37, (1979) 142 CLR 563
Davies v Adelaide Chemical & Fertiliser Company Limited [1946] HCA 47, (1946) 74 CLR 541
Dell v Dalton (1991) 23 NSWLR 528
Dews v National Coal Board [1988] AC 1
Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports 81-695
Donovan v Port Macquarie Base Hospital [1999] NSWSC 1274
Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206
Fox v Percy [2003] HCA 22, (2003) 77 ALJR 989
Grimsey v Southern Regional Health Board (1997) 7 Tas R 67
Heather v Vita Pacific Ltd (1996) 6 Tas R 52
Hedge v Trenery (QCA, unreported, 7 November 1997, BC9706085)
Hyne & Son Pty Limited v Tomlinson (Queensland Court of Appeal, 22 May 1998, unreported, BC9802125)
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50, (2003) 77 ALJR 1657, (2003) 201 ALR 77
John Summers & Sons Ltd v Frost [1955] AC 740
Jones v Bradley [2003] NSWCA 81
Jongen v CSR Ltd (1992) Aust Torts Reports 81-192
Joslyn v Berryman [2003] HCA 34, (2003) 77 ALJR 1233
Kelly v Fletcher (WASC, unreported, 22 October 1997, BC9705411)
Liftronic Pty Limited v…

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AGLC
Ghunaim v Bart [2004] NSWCA 28
Case
[2004] NSWCA 28
Decision Date

CaseChat Overview and Summary

Ghunaim (appellant) appealed to the New South Wales Court of Appeal against a judgment of the District Court which found him guilty of contributory negligence in relation to a workplace injury sustained while employed by Bart (respondent). The appeal concerned the findings of contributory negligence and the assessment of damages, including non-economic loss and loss of earning capacity.

The Court of Appeal was required to determine whether the District Court had erred in finding the appellant contributorily negligent. It also had to consider the principles governing contributory negligence in the context of an employer's duty of care to an employee, and the nature of an appeal against such a finding. Furthermore, the Court had to review the District Court's assessment of damages, specifically whether actuarial evidence was necessary to prove a claim for loss of superannuation benefits.

The Court of Appeal allowed the appeal, setting aside the District Court's judgment. It found that the appellant was not guilty of contributory negligence. The Court reasoned that the respondent employer had failed to establish that the appellant's actions contributed to his injury, applying established principles regarding the employer's non-delegable duty of care and the onus of proof in contributory negligence claims. The Court also found that the District Court had erred in its assessment of damages.

In lieu of the District Court's judgment, the Court of Appeal entered a verdict and judgment for the appellant in the amount of $308,862.03. The parties were granted liberty to apply regarding the calculation of this amount within 14 days, and the respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed. 2. Judgment below set aside. 3. In lieu thereof, verdict and judgment for the appellant in the amount of $308,862.03. 4. Parties to have liberty to apply on two days notice in respect of the calculation of the verdict and judgment, such liberty to be exercised no later than 14 days after the date of this judgment. 5. Respondent to pay the appellant's costs of the appeal.

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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