Limro, Pty Ltd v McKenna, M - [1990] FCA 388

C A T C H W O R D S

Negligence - liability of employer to employee for negligent acts of independent contractor - "non-delegable" duty of care to employee.
Negligence - plaintiff nurse injured by tripping over cord connected to polishing machine operated by employee of cleaning contractor engaged by hospital - whether a failure to exercise reasonable care on part of cleaning contractor
- no new question of principle.

Contributory negligence - plaintiff nurse injured by tripping over cord connected to polishing machine operated by employee of cleaning contractor engaged by hospital - whether a failure to exercise reasonable care for own safety on part of plaintiff - no new question of principle.
Contribution between tort-feasors - term in contract requiring contractor to indemnify hospital for liability - Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s.11
- whether contractor's right to contribution under Act
excluded by terms of contract.

Damages - personal injury - loss of earning capacity - no new question of principle.

Damaqes - personal injury - interest - whether interest to - be awarded on ~riffiths v. Kerkemeyer component when ~laintiff has not paid expenses prior to hearinq - ACT - -
:upreme Court Act 1933, s.53~.
Damages - personal injury - interest - whether interest to be awarded on Fox v. Wood component - ACT Supreme Court Act 1933, s.53A.
Kondis v. State Transport Authority (1984) 154 C.L.R. 672

PRINCIPAL

Wilsons & Clyde Coal Company Limited v. Enqlish [l9381
A.C. 57
Vial v. Housinq Commission of New South Wales and Another
[l9761 1 N.S.W.L.R. 388 at 396
Stevens v. Brodribb Sawmillins Company Pty. Ltd. (1986)
160 C.L.R. 16
Sunqravure Proprietary Limited v. Meani
C.L.R. 24
Cervellone v. Besselink Bros. Pty. Ltd. (1984)

RECEIVED

1 AUG1990
FEDERAL COURT OF

AUSTWU.lA
Glanville Williams in Joint Torts and Contributory
Neqliqence (1st ed., 2nd impression) 1953 at p.145
Canberra Formwork Pty Ltd. v. Civil & Civic Ltd. and
Another (1982) 41 A.C.T.R. 1
City of Kitchener v. Robe & Clothinq Co. Ltd. [l9251 1
D.L.R. 1165

Joze Malec v. J.C. Hutton Pty. Ltd. (1990) 92 A.L.R. 545
Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161
Fox v. Wood (1981) 148 C.L.R. 438
Batchelor v. Burke (1981) 148 C.L.R. 448
Fire and All Risks Insurance Co. Ltd. v. Callinan (1978)
140 C.L.R. 427 at 432
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL
TERRITORY
LIMRO PTY. LIMITED V. MARY MCKENNA and AUSTRALIAN CAPITAL
TERRITORY HEALTH AUTHORITY
No. ACT G40 of 1989
Neaves, Miles & Lee JJ.
26 July 1990

Canberra

IN THE FEDERAL COURT OF AUSTRALIA )
1
AUSTRALIAN CAPITAL TERRITORY i
) No. ACT G40 of 1989
DISTRICT REGISTRY 1
1
GENERAL DIVISION j
ON APPEAL FROM THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL
TERRITORY
BETWEEN: LIMRO PTY. LIMITED
Appellant

AND: MARY McKENNA
First Respondent

AND: AUSTRALIAN CAPITAL
TERRITORY HEALTH
AUTHORITY
Second Respondent

MINUTE OF ORDER

Coram : Neaves, Miles & Lee 33.

Date 26 July 1990
Place : Canberra
THE COURT ORDERS THAT:
(1) The appeal…

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: [1990] FCA 388
Decision Date: 26 Jul 1990

CaseChat Overview and Summary

Limro, Pty Ltd v McKenna, M was an appeal against findings of negligence made against Limro and the Australian Capital Territory Health Authority (ACTHA) in relation to an injury sustained by the plaintiff, Mary McKenna, while working at the Woden Valley Hospital. Limro carried out cleaning services at the hospital and on the day of the incident, Mrs Peresan, an employee of Limro, was using an electric polishing machine in a corridor near to where McKenna was injured. McKenna tripped over a cord connected to the polishing machine and suffered a comminuted fracture of the left patella. McKenna brought an action for damages in the Supreme Court of the Australian Capital Territory against Limro and ACTHA. The trial judge found in favour of McKenna and awarded damages of $250,126.86, together with costs. His Honour also ordered that Limro indemnify ACTHA in respect of the amount of the judgment and costs. Limro appealed against the findings of negligence against it, against the finding that there was no contributory negligence on the part of McKenna, against the finding that it was obliged to indemnify ACTHA in respect of ACTHA's liability to McKenna and against the award of damages. ACTHA also appealed against the finding of negligence against it and against the finding that there was no contributory negligence. The court found that the appeal against the findings of negligence and the indemnity order should be dismissed. The appeal against the award of damages was allowed and the amount awarded was reduced by $4,425 to $245,701.86. The appellant was to pay the costs of the second respondent occasioned by that aspect of the appeal.

Orders