New South Wales
Court of Appeal
CITATION: Hanson Construction Materials Pty Limited v Tawhai [2010] NSWCA 55 HEARING DATE(S): 9 December 2009
JUDGMENT DATE:
1 April 2010JUDGMENT OF: Hodgson JA at 1; Basten JA at 80; Sackville AJA at 83 DECISION: (1) Appeal allowed.
(2) Cross-appeal dismissed.
(3) Hanson to bring in short minutes of order within twenty-eight days, or if short minutes of order are not agreed, to bring in its proposed short minutes with submissions, with submissions from the other parties to be provided within a further fourteen days.CATCHWORDS: TORT – Negligence – Duty of care owed by entity to whom a worker was hired out – Whether breach of duty established – Apportionment of liability between that entity and another tortfeasor. - APPEAL – Fresh evidence – Matter falling within area of uncertainty where trial judge’s estimate made – Not admitted to support ground of appeal – Other grounds of appeal made out, and evidence admitted to assist Court of Appeal to reassess damages. - DAMAGES – Future economic loss – Trial judge’s assessment based on current earnings, which were in excess of what it was likely that the plaintiff would have earned but for the injury – Error shown – Civil Liability Act 2002 s13. LEGISLATION CITED: Civil Liability Act 2002 s13
Law Reform (Miscellaneous Provisions) Act 1946 s5
Motor Accidents Compensation Act 1999
Uniform Civil Procedure Rules 51.2, and also UCPR 51.18(1)(f)
Workers Compensation Act 1987 s151ZCATEGORY: Principal judgment CASES CITED: Ace-Semi Trailer Sales Pty Limited v Zurich Australia Insurance Limited [2009] NSWCA 381
Andrews v Nominal Defendant (1962) 63 SR(NSW) 110
Doherty v Liverpool Hospital (1991) 22 NSWLR 284
Estate of Mutton v Howard Haulage Pty Limited [2007] NSWCA 340
Mulholland v Mitchell [1971] AC 666 at 679-80
Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492
Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235
Roads and Traffic Authority (NSW) v Turner [2008] NSWCA 48
TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Warr v Santos [1973] 1 NSWLR 432PARTIES: HANSON CONSTRUCTION MATERIALS PTY LIMITED (appellant)
Paul Winiata TAWHAI (first respondent)
PIONEER ROAD SERVICES PTY LIMITED (second respondent)FILE NUMBER(S): CA 2009/00298210 COUNSEL: S TORRINGTON (appellant)
D KENNEDY SC/ G SMITH (first respondent)
N POLIN (second respondent)SOLICITORS: Turkslegal (appellant)
Lough Wells Duncan Lawyers (first respondent)
DLA Phillips Fox Lawyers (second respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 174/05 LOWER COURT JUDICIAL OFFICER: Delaney DCJ LOWER COURT DATE OF DECISION: 3 October 2008
- 1 -
2009/00298210
DC 174/051 APRIL 2010HODGSON JA
BASTEN JA
SACKVILLE AJA
HANSON CONSTRUCTION MATERIALS PTY LIMITED v Paul Winiata TAWHAI
Judgment
1 HODGSON JA: The proceedings giving rise to this appeal arose out of an accident that occurred at Wallgrove Quarry on 4 June 2002. At that time, the first respondent (the plaintiff) was employed by a labour hire company Adecco Industrial…
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Details
- Case
- [2010] NSWCA 55
- Decision Date
CaseChat Overview and Summary
Hanson Construction Materials Pty Limited appealed to the New South Wales Court of Appeal against a judgment of the District Court of New South Wales, which had found Hanson liable in negligence for injuries sustained by Mr. Tawhai, a worker hired out to Hanson by a labour hire company. The dispute concerned whether Hanson owed Mr. Tawhai a duty of care, whether that duty was breached, and how liability should be apportioned between Hanson and another tortfeasor.
The Court of Appeal was required to determine whether the trial judge erred in finding that Hanson owed Mr. Tawhai a duty of care and, if so, whether that duty was breached. Further, the Court had to consider whether the trial judge’s assessment of damages, particularly future economic loss, was demonstrably wrong, and whether fresh evidence should be admitted on appeal. The Court also had to consider the apportionment of liability between Hanson and the other tortfeasor.
The Court of Appeal found that the trial judge had erred in assessing Mr. Tawhai’s future economic loss. It held that the trial judge’s assessment was based on current earnings that were likely in excess of what Mr. Tawhai would have earned had he not been injured, contrary to the principles established by section 13 of the Civil Liability Act 2002 (NSW). While the Court dismissed the grounds of appeal relating to the existence of a duty of care and its breach, it admitted fresh evidence to assist in reassessing damages.
Consequently, the appeal was allowed, and the cross-appeal was dismissed. Hanson was directed to bring in short minutes of order within twenty-eight days, with provisions for submissions if the minutes were not agreed.
The Court of Appeal was required to determine whether the trial judge erred in finding that Hanson owed Mr. Tawhai a duty of care and, if so, whether that duty was breached. Further, the Court had to consider whether the trial judge’s assessment of damages, particularly future economic loss, was demonstrably wrong, and whether fresh evidence should be admitted on appeal. The Court also had to consider the apportionment of liability between Hanson and the other tortfeasor.
The Court of Appeal found that the trial judge had erred in assessing Mr. Tawhai’s future economic loss. It held that the trial judge’s assessment was based on current earnings that were likely in excess of what Mr. Tawhai would have earned had he not been injured, contrary to the principles established by section 13 of the Civil Liability Act 2002 (NSW). While the Court dismissed the grounds of appeal relating to the existence of a duty of care and its breach, it admitted fresh evidence to assist in reassessing damages.
Consequently, the appeal was allowed, and the cross-appeal was dismissed. Hanson was directed to bring in short minutes of order within twenty-eight days, with provisions for submissions if the minutes were not agreed.
Orders
Orders of the court
(1) Appeal allowed.
(2) Cross-appeal dismissed.
(3) Hanson to bring in short minutes of order within twenty-eight days, or if short minutes of order are not agreed, to bring in its proposed short minutes with submissions, with submissions from the other parties to be provided within a further fourteen days.
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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