Hawkins v Ross Human Directions Ltd - [2015] NSWCA 265

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hawkins v Ross Human Directions Ltd [2015] NSWCA 265
Hearing dates: 19 August 2015
Decision date: 08 September 2015
Before: Gleeson JA at [1];
Leeming JA at [2];
Beech-Jones J at [45]
Decision:
Appeal dismissed, with costs.

Catchwords: TORTS – negligence – employee injured back while lifting boxes at work – where system of work involved employee lifting boxes weighing up to 9.8 kg – employee injured when lifting box weighing no more than 7 kg – claim against employer dismissed – no error by primary judge in failing to deal with evidence that employee was lifting and twisting – primary judge relied upon actual weight of box lifted to find no breach of duty – respondent conceded error – error led to aspects of employee’s claim not being addressed – whether substantial miscarriage of justice – experts not cross-examined at trial – assumptions of employee’s expert not supported by evidence – other expert evidence failed to establish breach – appeal dismissed
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Allesch v Maunz [2000] HCA 40; 203 CLR 172
Boral Resources (NSW) Pty Ltd v Gangi [2014] NSWCA 287
Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92
Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31
Category: Principal judgment
Parties: Sarah Hawkins (Appellant)
Ross Human Directions Ltd (Respondent)
Representation:
Counsel:
BG McManamey (Appellant)
D Hooke SC, P O’Connor (Respondent)
Solicitors:
Law Partners Compensation Lawyers (Appellant)
Holman Webb Lawyers (Respondent)

File Number(s): 2014/356538
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

7 November 2014

Before:

Balla DCJ

File Number(s):

182540 of 2013

Judgment

GLEESON JA: I agree with Leeming JA.
LEEMING JA: Ms Sarah Hawkins appeals, purportedly as of right, from the judgment in favour of her employer, Ross Human Directions Ltd, entered following a four day trial in the District Court. Although aspects of the reasoning of the primary judge disclose material error, I have nevertheless concluded, for the reasons which follow, that the appeal should be dismissed.

Background

There was no dispute about many of the underlying facts. Ross had entered into a written Recruitment Services Agreement with Citigroup Pty Ltd (Citibank), pursuant to which a number of Ross employees were sent to Citibank’s premises in the Sydney CBD in around May 2010. Ms Hawkins was one of a team of data analysts whose responsibilities included data entry from a large number of physical files stored by Citibank in archive boxes. Ross also sent a number of runners, who were responsible for moving the archive boxes between the secure storage rooms and the analysts.
Ms Hawkins started work in Citibank’s premises on 25 May 2010. She was injured on the evening of Saturday 26 June 2010 while lifting two archive boxes in…

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: [2015] NSWCA 265
Decision Date: 08 September 2015

CaseChat Overview and Summary

The appellant, Hawkins, brought a claim in negligence against the respondent, Ross Human Directions Ltd, alleging injury sustained while lifting boxes at work. The primary judge dismissed the claim. Hawkins appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge erred in dismissing the claim, specifically in failing to adequately consider the evidence of lifting and twisting, and whether the primary judge's reliance on the actual weight of the box lifted, rather than the potential weight, constituted a reversible error. The court also considered whether any conceded error by the primary judge led to a substantial miscarriage of justice, and the weight to be given to expert evidence where experts were not cross-examined and their assumptions were not supported by evidence.

The Court of Appeal found that while the primary judge may have erred in focusing solely on the actual weight of the box lifted and in not fully addressing the evidence of twisting, this error did not lead to a substantial miscarriage of justice. The court noted that the expert evidence presented by the appellant did not establish a breach of duty, particularly as the assumptions of the appellant's expert were not supported by the evidence, and the respondent's expert evidence also failed to establish a breach. Consequently, the appeal was dismissed.

The appeal was dismissed, with costs awarded to the respondent.

Orders

Orders of the court

Appeal dismissed, with costs.

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:	Hawkins v Ross Human Directions Ltd [2015] NSWCA 265
Hearing dates:	19 August 2015
Decision date:	08 September 2015
Before:	Gleeson JA at [1]; Leeming JA at [2]; Beech-Jones J at [45]
Decision:	Appeal dismissed, with costs.
Catchwords:	TORTS – negligence – employee injured back while lifting boxes at work – where system of work involved employee lifting boxes weighing up to 9.8 kg – employee injured when lifting box weighing no more than 7 kg – claim against employer dismissed – no error by primary judge in failing to deal with evidence that employee was lifting and twisting – primary judge relied upon actual weight of box lifted to find no breach of duty – respondent conceded error – error led to aspects of employee’s claim not being addressed – whether substantial miscarriage of justice – experts not cross-examined at trial – assumptions of employee’s expert not supported by evidence – other expert evidence failed to establish breach – appeal dismissed
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited:	Allesch v Maunz [2000] HCA 40; 203 CLR 172 Boral Resources (NSW) Pty Ltd v Gangi [2014] NSWCA 287 Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31
Category:	Principal judgment
Parties:	Sarah Hawkins (Appellant) Ross Human Directions Ltd (Respondent)
Representation:	Counsel: BG McManamey (Appellant) D Hooke SC, P O’Connor (Respondent) Solicitors: Law Partners Compensation Lawyers (Appellant) Holman Webb Lawyers (Respondent)
File Number(s):	2014/356538
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 7 November 2014 Before: Balla DCJ File Number(s): 182540 of 2013