Gray v Coles Supermarkets Pty Limited - [2019] NSWDC 749

District Court

New South Wales

Medium Neutral Citation: Gray v Coles Supermarkets Pty Limited [2019] NSWDC 749
Hearing dates: 4, 5, 6, 7 and 8 November 2019
Date of orders: 13 December 2019
Decision date: 13 December 2019
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Judgment for the defendant against the plaintiff.
(2)   Order the plaintiff to pay the defendant’s costs of defending the plaintiff’s claim.
(3)   Judgment for the cross defendant on the Cross-Claim.
(4)   Order the cross-claimant to pay the cross-defendant’s costs of the Cross-Claim.
(5)   Grant leave to approach my Associate if any party seeks a different costs order.

Catchwords:
NEGLIGENCE – whether a reasonable person would have taken precautions against a risk of harm – burden of taking precautions to avoid the risk of harm – Civil Liability Act 2002 (NSW) ss 5B, 5C

CROSS-CLAIM – labour hire agreement – contribution as a tortfeasor – contractual indemnity – breach of contract
OTHER – lower back injury during manual handling – training and instruction – supervision – pallet turning
Legislation Cited: Civil Liability Act 2002 (NSW)
Law Reform Miscellaneous Provisions Act 1946 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Work Health and Safety Regulation 2011 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Bunnings Group Limited v Giudice [2018] NSWCA 144
Coles Supermarkets Australia Pty Ltd v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2018] NSWCA 140
Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098
Category: Principal judgment
Parties: Roland Gray (Plaintiff)
Coles Supermarkets Pty Ltd (Defendant)
Representation:
Counsel:
B D Dooley SC with M H Best (Plaintiff)
G J Parker SC (Defendant/Cross-Claimant)
J Catsanos SC (Cross-Defendant)
Solicitors:
LHD Lawyers (Plaintiff)
McCulloch & Buggy (Defendant/Cross-Claimant)
Holman Webb (Cross-Defendant)

File Number(s): 2018/131372

Judgment

Background
Evidence of the Plaintiff
Evidence of Mr Farr
Expert evidence on liability for the plaintiff
Lay evidence on liability for the defendant
Expert evidence on liability for the defendant
Liability – Findings of Fact
Liability – Consideration
Pallet turning

Conclusion on Liability
Theoretical Assessment of Damages
Non-Economic Loss
Past Out-of-Pocket Expenses
Future Out-of-Pocket Expenses
Future Care
Past Economic Loss
Past Superannuation Loss
Future Loss of Earning Capacity
Future Superannuation
Conclusion on Theoretical Damages

The Cross-Claim
Claim for contribution as a tortfeasor
Claim for Indemnity – Clause 1.15 of Schedule 2 of the Services Agreement
Clause 3.2(c) of the Services Agreement
Schedule 3 of the Services Agreement
Clause 1.22 of Schedule 2 to the Services Agreement
Clause 2.1(d) of Schedule 2 to the Services Agreement
Clause 13.2.1 of Schedule 2 to the Services Agreement
Conclusion in relation to Clause 1.15 of Schedule 2 to the Services Agreement

Claim for Indemnity - Clause 13.1 of the Services Agreement
Damages for Breach of Contract
Breaches specifically pleaded
Breach through actions of the plaintiff

Conclusion on the Cross-Claim
Orders

Judgment

Background

The plaintiff was employed by Ready Workforce (A Division of Chandler Macleod) Pty Limited (Ready Workforce) as a picker packer. The plaintiff worked at the defendant’s grocery distribution centre at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWDC 749
Decision Date: 13 December 2019

CaseChat Overview and Summary

The case of Gray v Coles Supermarkets Pty Limited involved a dispute between the plaintiff, who sustained a lower back injury while working at a Coles supermarket, and the defendant, the supermarket chain. The plaintiff sought compensation for the injury, alleging negligence on the part of Coles. The defendant, in turn, filed a cross-claim against the plaintiff’s employer, alleging that the employer should be liable for the injury due to a breach of a contractual indemnity clause. The case was heard in the District Court of New South Wales.

The primary legal issues the court had to resolve were whether Coles owed a duty of care to the plaintiff to take reasonable precautions against the risk of harm from manual handling, and whether Coles had breached that duty. The court also had to determine the extent to which the plaintiff’s employer was liable under the cross-claim for any breach of a contractual indemnity clause. The court examined the statutory provisions under the Civil Liability Act 2002 (NSW) concerning the duty of care, the burden of taking precautions, and the employer’s obligations under the labour hire agreement.

The court found that Coles had not breached its duty of care to the plaintiff. It was determined that a reasonable person in Coles’ position would not have taken the precautions that the plaintiff argued should have been taken to prevent the risk of harm. The court held that the burden of taking such precautions was disproportionate to the risk involved. The court also ruled that the plaintiff’s employer was liable for the injury under the cross-claim, as it had breached the contractual indemnity clause. Consequently, the court found in favour of Coles and against the plaintiff, and in favour of the employer on the cross-claim. The court ordered the plaintiff to pay Coles’ costs and the employer to pay the cross-defendant’s costs. The court also granted leave to approach the Associate for any future application regarding costs.

Orders

Orders of the court

(1) Judgment for the defendant against the plaintiff.

(2) Order the plaintiff to pay the defendant’s costs of defending the plaintiff’s claim.

(3) Judgment for the cross defendant on the Cross-Claim.

(4) Order the cross-claimant to pay the cross-defendant’s costs of the Cross-Claim.

(5) Grant leave to approach my Associate if any party seeks a different costs order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gray v Coles Supermarkets Pty Limited [2019] NSWDC 749
Hearing dates:	4, 5, 6, 7 and 8 November 2019
Date of orders:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the defendant against the plaintiff. (2) Order the plaintiff to pay the defendant’s costs of defending the plaintiff’s claim. (3) Judgment for the cross defendant on the Cross-Claim. (4) Order the cross-claimant to pay the cross-defendant’s costs of the Cross-Claim. (5) Grant leave to approach my Associate if any party seeks a different costs order.
Catchwords:	NEGLIGENCE – whether a reasonable person would have taken precautions against a risk of harm – burden of taking precautions to avoid the risk of harm – Civil Liability Act 2002 (NSW) ss 5B, 5C CROSS-CLAIM – labour hire agreement – contribution as a tortfeasor – contractual indemnity – breach of contract OTHER – lower back injury during manual handling – training and instruction – supervision – pallet turning
Legislation Cited:	Civil Liability Act 2002 (NSW) Law Reform Miscellaneous Provisions Act 1946 (NSW) Motor Accidents Compensation Act 1999 (NSW) Work Health and Safety Regulation 2011 (NSW) Workers Compensation Act 1987 (NSW)
Cases Cited:	Bunnings Group Limited v Giudice [2018] NSWCA 144 Coles Supermarkets Australia Pty Ltd v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2018] NSWCA 140 Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098
Category:	Principal judgment
Parties:	Roland Gray (Plaintiff) Coles Supermarkets Pty Ltd (Defendant)
Representation:	Counsel: B D Dooley SC with M H Best (Plaintiff) G J Parker SC (Defendant/Cross-Claimant) J Catsanos SC (Cross-Defendant) Solicitors: LHD Lawyers (Plaintiff) McCulloch & Buggy (Defendant/Cross-Claimant) Holman Webb (Cross-Defendant)
File Number(s):	2018/131372