Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345 Hearing dates: 2 September 2014 Decision date: 13 October 2014 Before: Meagher JA at [1]; Barrett JA at [2]; Emmett JA at [76] Decision: 1. Appeal allowed in part.
2. Cross-appeal dismissed.
3. Direct that the parties within fourteen days bring in agreed short minutes of orders varying the orders made in the Common Law Division on 10 February 2014 in such manner as is necessary to reflect a 75 per cent / 25 per cent apportionment of responsibility between the first respondent and the second respondent consistently with the reasons of this Court
4. Costs of the appeal brought by notice of appeal filed on 13 February 2014 are reserved for future decision.
5. Direct that the parties promptly exchange written submissions (limited, in each case, to three pages) on the orders that should be made with respect to the costs of the appeal brought by notice of appeal filed on 13 February 2014 and that all such submissions be filed within fourteen days.
6. The cross-respondents' costs of the cross-appeal brought by notice of cross-appeal filed on 26 May 2014 be paid by the cross-appellant.
[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: TORTS - negligence - workplace injury - worker employed by second respondent injured when unloading pantechnicon after arrival at place of employment - vehicle packed by first respondent before departure - two of three bars used to restrain load were not installed before departure - finding of negligence by first respondent not challenged on appeal - worker challenges finding of negligence by second respondent employer - CONTRIBUTION BETWEEN TORTFEASORS - where primary judge held respondents equally responsible - failure to recognise that predominant responsibility rested with the first respondent - CONTRIBUTION BETWEEN TORTFEASORS - whether burden of costs ordered against first respondent in favour of worker should have been regarded as subject to contribution to be made by second respondent employer - relevance of legislative provisions precluding costs orders as between employer and employee - whether first respondent should be affected indirectly by such provisions Legislation Cited: Civil Liability Act 2002 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Workers Compensation Act 1987 (NSW)
Workers Compensation Regulation 2010 (NSW)Cases Cited: Ace-Semi Trailer Sales Pty Ltd v Zurich Australia Insurance Ltd [2009] NSWCA 381
Australian Winch and Haulage Co Pty Ltd v Collins [2013] NSWCA 327
Donnellan v Woodland [2012] NSWCA 455
Estate of the late MT Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340
Grima v RFI (Aust) Pty Ltd [2013] NSWSC…
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- AGLC
- Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345
- Case
- [2014] NSWCA 345
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the primary judge had correctly apportioned responsibility between the first and second respondents, particularly in light of the predominant responsibility resting with the first respondent for failing to properly secure the load. Furthermore, the court had to consider whether the burden of costs ordered against the first respondent in favour of the worker should have been viewed as subject to contribution from the second respondent employer, and whether legislative provisions precluding costs orders as between employer and employee indirectly affected the first respondent's liability for contribution.
The court reasoned that the primary judge had erred in holding the respondents equally responsible, finding that the predominant responsibility for the injury lay with the first respondent. The court applied principles of contribution between tortfeasors, noting that the failure to properly secure the load was the primary cause of the accident. The court also considered the impact of statutory provisions that limit or preclude costs orders between an employer and employee, concluding that these provisions should not prevent the first respondent from seeking contribution from the second respondent.
The appeal was allowed in part, and the cross-appeal was dismissed. The court directed that the parties submit agreed minutes of orders to vary the original orders, reflecting a 75 per cent / 25 per cent apportionment of responsibility between the first and second respondents respectively. The costs of the appeal were reserved for future decision, with parties directed to exchange written submissions on the matter. The cross-respondents were awarded their costs of the cross-appeal against the cross-appellant.
Orders
Orders of the court
1. Appeal allowed in part.
2. Cross-appeal dismissed.
3. Direct that the parties within fourteen days bring in agreed short minutes of orders varying the orders made in the Common Law Division on 10 February 2014 in such manner as is necessary to reflect a 75 per cent / 25 per cent apportionment of responsibility between the first respondent and the second respondent consistently with the reasons of this Court
4. Costs of the appeal brought by notice of appeal filed on 13 February 2014 are reserved for future decision.
5. Direct that the parties promptly exchange written submissions (limited, in each case, to three pages) on the orders that should be made with respect to the costs of the appeal brought by notice of appeal filed on 13 February 2014 and that all such submissions be filed within fourteen days.
6. The cross-respondents' costs of the cross-appeal brought by notice of cross-appeal filed on 26 May 2014 be paid by the cross-appellant.
[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
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Ratio Decidendi
Legal Principle Established
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