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Livermore v Nepean Longwall Pty Ltd

Livermore v Nepean Longwall Pty Ltd

Case [2017] NSWDC 5 3 February 2017

Negligence

Contributory Negligence

Limitation Periods

Compensatory Damages

Statutory Interpretation

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Livermore v Nepean Longwall Pty Ltd [2017] NSWDC 5
Hearing dates: 17 & 18 October 2016
Date of orders: 03 February 2017
Decision date: 03 February 2017
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. Verdict for the plaintiff in the amount of $322,738.70;

2. Pursuant to s 151Z of the Workers Compensation Act 1987, the notional negligence of the plaintiff’s employer is assessed at 20 per cent;

3. After applying the findings made pursuant to s 151Z of the Workers Compensation Act 1987, judgment for the plaintiff against the defendant in the sum of $258,190.96;

4. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

5. The exhibits may be returned;
6. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: TORT – negligence – employee of labour hire company injured in an assigned workplace – occupier’s liability – whether defendant occupier was negligent – whether plaintiff was contributorily negligent – whether damages should be reduced on account of alleged notional negligence on the part of the plaintiff’s employer pursuant to s 151Z of the Workers Compensation Act 1987 – limitation – whether proceedings are statute barred; DAMAGES – assessment of claimed heads of damage
Legislation Cited: Civil Liability Act 2002, Pt 1A, s 5B, s 5C, s 5D, s 15, s 16
Evidence Act 1995, s 60
Limitation Act 1969, s 50C, s 50D
Workers Compensation Act 1987, s 151L, s 151Z
Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420
Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Baker-Morrison v State of NSW [2009] NSWCA 35; (2009) 74 NSWLR 454
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Browne v Dunn (1894) 6 R 67
Cupac v Cannone [2015] NSWCA 114
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Glen v Sullivan [2015] NSWCA 191
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Manly Municipal Council v Skene [2002] NSWCA 385
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180
Miller v Galderisi [2009] NSWCA 353
Penrith City Council v Parks [2004] NSWCA 201
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Sampco Pty Ltd v Wurth [2015] NSWCA 117
State of NSW v Gillett [2012] NSWCA 83
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA…

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.

Continue reading Livermore v Nepean Longwall Pty Ltd

Details

AGLC: Livermore v Nepean Longwall Pty Ltd [2017] NSWDC 5
Case: [2017] NSWDC 5
Decision Date: 03 February 2017

CaseChat Overview and Summary

Livermore brought an action against Nepean Longwall Pty Ltd for injuries sustained while working at a mine site. Livermore was an employee of a labour hire company and was assigned to Nepean Longwall. Livermore claimed that Nepean Longwall was negligent in the way the site was managed and maintained, leading to his injuries. Nepean Longwall argued that Livermore was contributorily negligent and that the claim was statute-barred under the Limitation Act. Nepean Longwall also argued that any damages awarded should be reduced by 20% pursuant to s 151Z of the Workers Compensation Act 1987.

The court had to determine whether Nepean Longwall was negligent, whether Livermore was contributorily negligent, and whether the proceedings were statute-barred. The court also needed to assess the notional negligence of Livermore's employer and determine the appropriate amount of damages. The court found that Nepean Longwall was negligent in the way the site was managed and maintained, and that Livermore was not contributorily negligent. The court held that the proceedings were not statute-barred, and assessed the notional negligence of Livermore's employer at 20%. The court found that Livermore was entitled to damages of $322,738.70, but after applying the findings made pursuant to s 151Z of the Workers Compensation Act 1987, the damages were reduced to $258,190.96.

The court found in favour of Livermore and ordered Nepean Longwall to pay Livermore $258,190.96 in damages. The court also ordered Nepean Longwall to pay Livermore's costs on the ordinary basis unless otherwise ordered. The exhibits were to be returned and Nepean Longwall was given liberty to apply for further or other orders within seven days of the judgment. The court held that Livermore was entitled to recover damages from Nepean Longwall for the injuries he sustained while working at the mine site.

Orders

Orders of the court

1. Verdict for the plaintiff in the amount of $322,738.70;

2. Pursuant to s 151Z of the Workers Compensation Act 1987, the notional negligence of the plaintiff’s employer is assessed at 20 per cent;

3. After applying the findings made pursuant to s 151Z of the Workers Compensation Act 1987, judgment for the plaintiff against the defendant in the sum of $258,190.96;

4. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

5. The exhibits may be returned;

6. Liberty to apply on 7 days’ notice if further or other orders are required.

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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Citations

Livermore v Nepean Longwall Pty Ltd [2017] NSWDC 5

Cases Citing This Decision

No citing cases yet.

Cases Cited

Glen v Sullivan [2015] NSWCA 191
Citation 1 (Para 64)

…the contrary proposition: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Glen v Sullivan [2015] NSWCA 191; s 5D of the CL Act .…
SampCo Pty Ltd v Wurth [2015] NSWCA 117
Citation 2 (Para 135)

…m has been reviewed and summarised at paragraphs [70] to [73] above. The medical evidence on this topic is non-contributory: Sampco Pty Ltd v Wurth [2015] NSWCA 117.…
Cupac v Cannone [2015] NSWCA 114
Citation 3 (Para 50)

…pposing views of those experts through cross-examination, an analysis of the basis of the conflicting opinions is therefore required: Cupac v Cannone [2015] NSWCA 114, at [18], following Manly Municipal Council v Skene [2002] NSWCA 385, at [21] – [22].…
State of New South Wales v Gillett [2012] NSWCA 83
Citation 4 (Para 148)

…In that regard, the following citation from State of NSW v Gillett [2012] NSWCA 83, at [131], citing Baker-Morrison v State of NSW [2009] NSWCA 35; (2009) 74 NSWLR 454, at [44] aptly applies to the present case:…
Strong v Woolworths Ltd [2012] HCA 5
Citation 5 (Para 102)

…e of the defendant, the plaintiff would not have sustained the injury for which she has brought these proceedings: Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182; s 5D(1)(a) of the CL Act .…
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Citation 6 (Para 131)

…ouncil v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].…
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Citation 7 (Para 80)

…87) 162 CLR 479, p 488. That must take place within the framework of the CL Act : Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420, at [11]; [15]; [27]; [41].…
Miller v Galderisi [2009] NSWCA 353
Citation 8 (Para 73)

…intiff’s evidence on this topic is that whatever domestic assistance she may be receiving from family members will continue: Miller v Galderisi [2009] NSWCA 353.…
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCATrans 234
Citation 9 (Para 80)

…, p 488. That must take place within the framework of the CL Act : Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420, at [11]; [15]; [27]; [41].…
Baker-Morrison v State of New South Wales [2009] NSWCA 35
Citation 10 (Para 148)

…In that regard, the following citation from State of NSW v Gillett [2012] NSWCA 83, at [131], citing Baker-Morrison v State of NSW [2009] NSWCA 35; (2009) 74 NSWLR 454, at [44] aptly applies to the present case:…
Majkic v Bonnano [2008] NSWCA 253
Citation 11 (Para 51)

…to be resolved according to the validity of the assumptions relied upon by the experts, and on a consideration of the onus of proof: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].…
Vairy v Wyong Shire Council [2005] HCA 62
Citation 12 (Para 87)

…required to be located to do their work involved a foreseeable risk of Mr Guest slipping, and falling onto the plaintiff: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. The defendant ought to have known of this risk: s 5B(1)(a) of the CL Act . That risk was not insignificant where Mr Gu…
Larson v Commissioner of Police [2004] NSWCA 126
Citation 13 (Para 51)

…on by the experts, and on a consideration of the onus of proof: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].…
Penrith City Council v Parks [2004] NSWCA 201
Citation 14 (Para 131)

…her ongoing impairment of her earning capacity is to allow a significant buffer rather than a projected weekly amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27…
Manly Municipal Council v Skene [2002] NSWCA 385
Citation 15 (Para 50)

…of the basis of the conflicting opinions is therefore required: Cupac v Cannone [2015] NSWCA 114, at [18], following Manly Municipal Council v Skene [2002] NSWCA 385, at [21] – [22].…
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Citation 16 (Para 62)

…tiff, have accurately summarised her complaints. I take those summaries to be evidence of her injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.…
State of New South Wales v Moss [2000] NSWCA 133
Citation 17 (Para 131)

…is to allow a significant buffer rather than a projected weekly amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].…
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Citation 18 (Para 150)

…ed the existence of material or significant prejudice which would contraindicate that conclusion: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, at p 555.…
Medlin v State Government Insurance Commission [1993] HCATrans 248
Citation 19 (Para 125)

…fer economic loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.…
Malec v JC Hutton Pty Ltd [1990] HCA 20
Citation 20 (Para 125)

…8; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.…
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7
Citation 21 (Para 80)

…ed to be addressed by the defendant taking appropriate action consistent with exercising reasonable care: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, p 488. That must take place within the framework of the CL Act : Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou N…
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1
Citation 22 (Para 77)

…e that was material, the defendant was in control of the system by which the work should be undertaken: Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, at [9]. Accordingly, the defendant must be taken to have had a relevant duty of care towards on-site workers such as Mr Guest and…
Purkess v Crittenden [1965] HCA 34
Citation 23 (Para 64)

…e defendant has not discharged the onus of proving the contrary proposition: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Glen v Sullivan [2015] NSWCA 191; s 5D of the CL Act .…
Graham v Baker [1961] HCA 48
Citation 24 (Para 125)

…y impaired, and that on the balance of probabilities, that such impairment is likely to cause the plaintiff to suffer economic loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180; Malec v JC Hutton Pty Ltd [1990…
Watts v Rake [1960] HCA 58
Citation 25 (Para 64)

…cause of her symptoms as being accident-related, and the defendant has not discharged the onus of proving the contrary proposition: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Glen v Sullivan [2015] NSWCA 191; s 5D of the CL Act .…
Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45
Citation 26 (Para 61)

…ft tissue injuries to her lumbar spine of which she complained, as described by Dr Gomes and by Dr Endrey-Walder: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538.…
Medlin v State Government Insurance Commission [1995] HCA 5
Citation 27 (Para 125)

…ly to cause the plaintiff to suffer economic loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.…
Browne v Dunn 113 ER 1206
Citation 28 (Para 120)

…62.24. The difficulty with accepting the latter proposition is that the cited suggestion was not put to the plaintiff in cross-examination: Browne v Dunn (1894) 6 R 67. For the reasons that follow, I do not accept the defendant’s submissions regarding the plaintiff’s claim for past economic loss.…

Legislation Cited

Evidence Act 1995 (Cth) 60
2 mentions (from Para 62)
Limitation Act 1969 (NSW) 50C
2 mentions (from Para 4)
Workers Compensation Act 1987 (NSW) 151L
2 mentions (from Para 4)
Civil Liability Act 2002 (TAS)
1 mention (from Para 1)

Medium Neutral Citation:	Livermore v Nepean Longwall Pty Ltd [2017] NSWDC 5
Hearing dates:	17 & 18 October 2016
Date of orders:	03 February 2017
Decision date:	03 February 2017
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. Verdict for the plaintiff in the amount of $322,738.70; 2. Pursuant to s 151Z of the Workers Compensation Act 1987, the notional negligence of the plaintiff’s employer is assessed at 20 per cent; 3. After applying the findings made pursuant to s 151Z of the Workers Compensation Act 1987, judgment for the plaintiff against the defendant in the sum of $258,190.96; 4. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered; 5. The exhibits may be returned; 6. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	TORT – negligence – employee of labour hire company injured in an assigned workplace – occupier’s liability – whether defendant occupier was negligent – whether plaintiff was contributorily negligent – whether damages should be reduced on account of alleged notional negligence on the part of the plaintiff’s employer pursuant to s 151Z of the Workers Compensation Act 1987 – limitation – whether proceedings are statute barred; DAMAGES – assessment of claimed heads of damage
Legislation Cited:	Civil Liability Act 2002, Pt 1A, s 5B, s 5C, s 5D, s 15, s 16 Evidence Act 1995, s 60 Limitation Act 1969, s 50C, s 50D Workers Compensation Act 1987, s 151L, s 151Z
Cases Cited:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420 Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Baker-Morrison v State of NSW [2009] NSWCA 35; (2009) 74 NSWLR 454 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Browne v Dunn (1894) 6 R 67 Cupac v Cannone [2015] NSWCA 114 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Glen v Sullivan [2015] NSWCA 191 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Larson v Commissioner of Police [2004] NSWCA 126 Majkic v Bonnano [2008] NSWCA 253 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Manly Municipal Council v Skene [2002] NSWCA 385 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180 Miller v Galderisi [2009] NSWCA 353 Penrith City Council v Parks [2004] NSWCA 201 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Sampco Pty Ltd v Wurth [2015] NSWCA 117 State of NSW v Gillett [2012] NSWCA 83 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA…