Kubovic v HMS Management Pty Ltd

Case [2015] NSWCA 315

Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Kubovic v HMS Management Pty Ltd [2015] NSWCA 315
Hearing dates:26 March 2015
Date of orders: 08 October 2015
Decision date: 08 October 2015
Before: McColl JA at [1], Ward JA at [136], Adamson J at [151]
Decision:

1.   Appeal dismissed.
2.   No order as to the costs of the appeal.

Catchwords:

TORTS – negligence – contributory negligence – where employer failed to provide safe system of work – whether appellant in control of work environment in which accident occurred – whether appellant’s conduct a cause of damage suffered

 

WORK ACCIDENT – work injury damages – admissibility of evidence not disclosed in pre-filing documents – Workplace Injury Management and Workers Compensation Act 1998 s 318 – where information that appellant attended gym available before pre-filing defence served – where surveillance evidence not disclosed until after commencement of trial

 

PRACTICE AND PROCEDURE – procedural fairness – whether treatment of surveillance evidence by primary judge denied appellant procedural fairness – where primary judge concluded medical evidence unreliable on basis of inference experts not informed of gym attendance – where primary judge concluded evidence of physical condition would alter medical experts’ opinions – whether incumbent on appellant to call experts to give evidence about impact of surveillance evidence on opinions – whether primary judge erred in assessing expert medical evidence where factual assumptions inconsistent with surveillance evidence.

COSTS – claim for work injury damages – whether “costs in relation to a claim for work injury damages, including court proceedings” in Workplace Injury Management and Workers Compensation Act 1998 s 346 extends to Court of Appeal proceedings – whether proceedings “ancillary” for purposes of Workers Compensation Regulation 2010
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5D, 12 - 14
Civil Procedure Act 2005 (NSW), ss 57 - 59
Uniform Civil Procedure Rules 2005 (NSW), r 31.10(2)(a), 31.29
Workers Compensation Act 1987 (NSW), ss 151G, 151H, 151N
Workers Compensation Regulation 2003 (NSW), rr 89 – 91, 93
Workers Compensation Regulation 2010 (NSW), cl 104 – 106, 108
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 313, 314, 315, 316, 318, 318A, 318B, 319, 325, 346
Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320
Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Chubs Constructions Pty Ltd v Sam Chamma (No 2) [2010] NSWCA 225; (2010) 78 NSWLR 679
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Drew v State of New South Wales [2015] NSWCA 159
Falasca v Morrissy [1998] ACTSC 35
Falasca v Morrissy [1999] FCA 277
Jones v National Coal Board [1957] 2 QB 55

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AGLC
Kubovic v HMS Management Pty Ltd [2015] NSWCA 315
Case
[2015] NSWCA 315
Decision Date

CaseChat Overview and Summary

The appeal in *Kubovic v HMS Management Pty Ltd* concerned a claim for damages for a work injury. The appellant, Mr Kubovic, alleged that his employer, HMS Management Pty Ltd, failed to provide a safe system of work, leading to his injury. The central dispute revolved around the appellant's conduct and the admissibility and weight of certain evidence, particularly surveillance footage, in assessing his claim.

The Court of Appeal was required to determine whether the primary judge erred in admitting and considering surveillance evidence that was disclosed late in the proceedings. Further, the court had to consider whether the primary judge's assessment of the appellant's medical evidence was affected by an assumption that the appellant was in control of the work environment where the accident occurred, and whether the primary judge's treatment of the surveillance evidence denied the appellant procedural fairness. The court also considered the question of costs in relation to the appeal.

The Court of Appeal dismissed the appeal. It found that the primary judge did not err in admitting the surveillance evidence, as the information regarding the appellant's gym attendance was available before the pre-filing defence was served, and the surveillance evidence itself was disclosed after the trial commenced but before the primary judge made findings. The court held that it was incumbent on the appellant to call his medical experts to give evidence about the impact of the surveillance evidence on their opinions, rather than assuming the primary judge would do so. The court concluded that the primary judge's assessment of the expert medical evidence was not flawed by factual assumptions inconsistent with the surveillance evidence. No order was made as to the costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. No order as to the costs of the 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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