Kemble v Gate Gourmet Services Pty Ltd - [2012] NSWDC 52

District Court

New South Wales

Medium Neutral Citation: Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 52
Hearing dates: 5, 6, 7 March 2012 and 26 March 2012 (written submissions)
Decision date: 24 April 2012
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the plaintiff in the sum of $294,453.93.
(2) Pursuant to s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), liability for payment of the judgment sum be apportioned 90% against the first defendant and 10% against the second defendant.
(3) The defendants' cross-claims otherwise dismissed.
(4) The parties are to bring in short minutes of order reflecting the amounts payable by each of the first and second defendant in accordance with my findings as to apportionment of liability between them.
(5) Defendants to pay the plaintiff's costs.
(6) Liberty to apply, and to restore the matter for any application concerning costs, including any request by the defendants to apportion costs as between the defendants and/or in relation to the order for costs in favour of the plaintiff.
(7) Exhibits retained for 28 days.

Catchwords: TORT - negligence - employee of labour hire firm injured by falling trolley while working at occupier's premises - plaintiff sues employer (labour hire firm) and occupier - duty and breach of duty issues - evidence - failure of occupier to produce documents in answer to subpoena and notice to produce - quantum - apportionment between labour hire firm and occupier pursuant to s 151Z Workers Compensation Act 1987 (NSW)
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D and 15
Civil Procedure Act 2005, s 56
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Workers Compensation Act 1987 (NSW), ss 90 and 151Z(2)
Cases Cited: Armory v Delamirie (1722) 1 Stra 505; 93 ER 664
Arnott v Choy (2010) 56 MVR 390
Attard v Hore [2002] QSC 437
Brogan v McGeary (1995) Aust Torts Reps 81-342
Clarence Valley Council v MacPherson [2011] NSWCA 422
Clarence Valley Council v MacPherson (District Court of New South Wales, Flannery DCJ, 16 March 2011)
El-Helou v Smith [2009] NSWSC 741
Hampton Court Ltd v Crooks (1957) 97 CLR 367
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490
Mahony v Watson [2003] NSWCA 259
Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174
McCartney v Orica Investments Pty Ltd [2011] NSWCA 337
Merkuloff v Yalisheff [2003] NSWSC 1183
Miller v Galderisi [2009] NSWCA 353
Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388
Owners - Strata Plan 156 v Gray [2004] NSWCA 304
Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274
Palavi v Radio 2UE Sydney Pty Ltd [2010] NSWDC 332
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
Strong v Woolworths Ltd [2012] HCA 5
TNT Australia Pty…

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: [2012] NSWDC 52
Decision Date: 24 April 2012

CaseChat Overview and Summary

The plaintiff, Kemble, brought an action against Gate Gourmet Services Pty Ltd, the labour hire firm, and another party, an occupier, following an injury sustained by a falling trolley while working at the occupier's premises. The case was heard in the Supreme Court of New South Wales, where the plaintiff sought damages for negligence. The primary legal issues before the court involved the duty of care owed by both the employer and the occupier, and whether there had been a breach of this duty. The court also had to consider the evidence provided, particularly the failure of the occupier to produce documents in response to a subpoena and notice to produce, and the apportionment of liability under the Workers Compensation Act 1987 (NSW).

The court examined whether the employer had a duty to ensure a safe working environment and whether it breached this duty by not adequately supervising or providing safety equipment. Regarding the occupier, the court considered whether it had a duty to maintain a safe workplace for the employees of the labour hire firm. The failure of the occupier to provide documents was noted, and the court inferred that the missing documents might have been unfavourable to the occupier's case. Ultimately, the court found both the employer and the occupier liable for negligence, apportioning the liability at 90% to the employer and 10% to the occupier.

The court rendered a judgment in favour of the plaintiff, awarding damages of $294,453.93. It determined that the liability for the payment of this sum should be apportioned according to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), with 90% against the employer and 10% against the occupier. The cross-claims by the defendants were dismissed. The court also ordered the parties to prepare minutes of the order reflecting the apportionment of amounts payable by each defendant. Additionally, the defendants were ordered to pay the plaintiff's costs, with liberty granted to apply for further orders regarding costs. The exhibits were retained for 28 days.

Orders

Orders of the court

(1) Judgment for the plaintiff in the sum of $294,453.93.

(2) Pursuant to s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), liability for payment of the judgment sum be apportioned 90% against the first defendant and 10% against the second defendant.

(3) The defendants' cross-claims otherwise dismissed.

(4) The parties are to bring in short minutes of order reflecting the amounts payable by each of the first and second defendant in accordance with my findings as to apportionment of liability between them.

(5) Defendants to pay the plaintiff's costs.

(6) Liberty to apply, and to restore the matter for any application concerning costs, including any request by the defendants to apportion costs as between the defendants and/or in relation to the order for costs in favour of the plaintiff.

(7) Exhibits retained for 28 days.

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:	Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 52
Hearing dates:	5, 6, 7 March 2012 and 26 March 2012 (written submissions)
Decision date:	24 April 2012
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff in the sum of $294,453.93. (2) Pursuant to s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), liability for payment of the judgment sum be apportioned 90% against the first defendant and 10% against the second defendant. (3) The defendants' cross-claims otherwise dismissed. (4) The parties are to bring in short minutes of order reflecting the amounts payable by each of the first and second defendant in accordance with my findings as to apportionment of liability between them. (5) Defendants to pay the plaintiff's costs. (6) Liberty to apply, and to restore the matter for any application concerning costs, including any request by the defendants to apportion costs as between the defendants and/or in relation to the order for costs in favour of the plaintiff. (7) Exhibits retained for 28 days.
Catchwords:	TORT - negligence - employee of labour hire firm injured by falling trolley while working at occupier's premises - plaintiff sues employer (labour hire firm) and occupier - duty and breach of duty issues - evidence - failure of occupier to produce documents in answer to subpoena and notice to produce - quantum - apportionment between labour hire firm and occupier pursuant to s 151Z Workers Compensation Act 1987 (NSW)
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5D and 15 Civil Procedure Act 2005, s 56 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Workers Compensation Act 1987 (NSW), ss 90 and 151Z(2)
Cases Cited:	Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 Arnott v Choy (2010) 56 MVR 390 Attard v Hore [2002] QSC 437 Brogan v McGeary (1995) Aust Torts Reps 81-342 Clarence Valley Council v MacPherson [2011] NSWCA 422 Clarence Valley Council v MacPherson (District Court of New South Wales, Flannery DCJ, 16 March 2011) El-Helou v Smith [2009] NSWSC 741 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 Mahony v Watson [2003] NSWCA 259 Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 Merkuloff v Yalisheff [2003] NSWSC 1183 Miller v Galderisi [2009] NSWCA 353 Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 Owners - Strata Plan 156 v Gray [2004] NSWCA 304 Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274 Palavi v Radio 2UE Sydney Pty Ltd [2010] NSWDC 332 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Strong v Woolworths Ltd [2012] HCA 5 TNT Australia Pty…