Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Kabic v AAI Limited t/as GIO [2019] NSWCA 247 Hearing dates: 14 and 15 March 2019 Decision date: 11 October 2019 Before: Meagher JA at [1];
White JA at [2];
McCallum JA at [204]Decision: (1) Appeal allowed in part.
(2) Cross-appeal dismissed.
(3) Set aside the orders 1, 2 and 3 made on 11 July 2018.
(4) Direct that within 21 days the parties provide short minutes of order for the judgments to be entered for the appellant against the respondent and for the second cross-respondent against the cross-appellant consistently with these reasons.
(5) If the parties do not agree upon the orders to be made in accordance with these reasons, within 21 days each party is to file and serve the orders which it and he proposes together with written submissions of not more than five pages in support of the orders proposed. Submissions in reply to the submissions and proposed orders of other parties may be filed and served within seven days thereafter.
(6) Order that the respondent and cross-appellant pay the costs of the appellant and cross-respondents of the appeal and cross-appeal.Catchwords: TORTS — negligence — labourer fell from raised wet plywood platform — whether expert evidence necessary to support finding that surface was slippery — whether primary judge erred in assessment of evidence and consequent factual findings — contributory negligence — whether worker contributorily negligent in following employer’s direction to work on wet platform
DAMAGES — assessment of damages for economic loss — whether evidence supported finding of residual earning capacity — application of principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Evidence Act 1995 (NSW), s 79
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Workers Compensation Act 1987 (NSW), s 151Z
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 325Cases Cited: Argo Managing Agency v Kammessy [2018] NSWCA 176
Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Ghunaim v Bart [2004] NSWCA 28
Hartge v F Lassetter & Co Ltd (1916) 16 SR (NSW) 174
J Blackwood & Son v Skilled Engineering [2008] NSWCA 142
Jackson v McDonalds Australia Ltd [2014] NSWCA 162
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Jurox Pty Ltd v Fullick [2016] NSWCA 180
Kabic v Workers Compensation Nominal Insurer (No. 3) [2017] NSWSC 1281
Kabic v Workers Compensation Nominal Insurer (No. 4) [2018] NSWSC 330
Kabic v Workers Compensation Nominal Insurer (No. 5) [2018] NSWSC 1070
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Mallett v McMonagle [1970] AC 166
McLean v Tedman (1984) 155 CLR 306
Meani v Sungravure Ltd [1964] NSWR 11
Metro North Hospital and Health Service…
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- Case
- [2019] NSWCA 247
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether expert evidence was necessary to establish that the wet plywood surface was slippery, whether the primary judge had made errors in assessing the evidence and making factual findings, and whether the appellant had been contributorily negligent by following his employer's instructions to work on the wet platform. Additionally, the court was required to consider the assessment of damages for economic loss, specifically whether the evidence supported a finding of residual earning capacity, applying the principles established in *Malec v J C Hutton Pty Ltd*.
The Court of Appeal allowed the appeal in part and dismissed the cross-appeal. The court found that the primary judge had not erred in finding the surface slippery, nor in the assessment of the evidence and consequent factual findings. However, the court did find an error in the primary judge's assessment of damages, particularly concerning the appellant's residual earning capacity. The court set aside the original orders and directed the parties to provide short minutes of order for judgments to be entered consistently with the court's reasons, or to file proposed orders and submissions if agreement could not be reached. The respondent and cross-appellant were ordered to pay the costs of the appellant and cross-respondents of the appeal and cross-appeal.
Orders
Orders of the court
(1) Appeal allowed in part.
(2) Cross-appeal dismissed.
(3) Set aside the orders 1, 2 and 3 made on 11 July 2018.
(4) Direct that within 21 days the parties provide short minutes of order for the judgments to be entered for the appellant against the respondent and for the second cross-respondent against the cross-appellant consistently with these reasons.
(5) If the parties do not agree upon the orders to be made in accordance with these reasons, within 21 days each party is to file and serve the orders which it and he proposes together with written submissions of not more than five pages in support of the orders proposed. Submissions in reply to the submissions and proposed orders of other parties may be filed and served within seven days thereafter.
(6) Order that the respondent and cross-appellant pay the costs of the appellant and cross-respondents of the appeal and cross-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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