Kemble v Gate Gourmet Services Pty Ltd

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.