Lorrimar v Serco Sodexo Defence Services Pty Ltd

The appellant, Lorrimar, appealed to the Court of Appeal of New South Wales against a decision of the District Court that dismissed his claim in negligence against the respondent, Serco Sodexo Defence Services Pty Ltd. The dispute arose from an injury sustained by the appellant while cleaning kitchen benches at work. The work instructions required the appellant to wash benches with detergent and then rinse with hot water. As there was no hot water supply from the tap, the appellant heated water on a stove, and in doing so, was burnt. The appellant alleged the respondent was negligent in requiring him to heat water in circumstances where its temperature could not be gauged.

The primary legal issues before the Court of Appeal were whether the primary judge failed to properly consider the elements of negligence, specifically the scope of the duty of care, the risk of harm, breach of duty, and causation, as required by sections 5B, 5C, and 5D of the Civil Liability Act. Additionally, the court considered whether the appellant was denied procedural fairness, particularly in relation to the primary judge's conclusion that the appellant deliberately boiled the water, a basis for dismissal not relied upon by the respondent or put to the appellant. The court also examined whether a substantial miscarriage of justice had occurred, warranting a new trial.

The Court of Appeal found that the primary judge's conclusion that the appellant deliberately boiled the water was not supported by the evidence and was not a basis upon which the case had been conducted. The judge's reliance on medical histories to infer this deliberate action, without affording the appellant an opportunity to respond, constituted a denial of procedural fairness. Consequently, the court determined that the primary judge's errors were material to the outcome, leading to a substantial miscarriage of justice.

The Court of Appeal granted leave to appeal, allowed the appeal, set aside the orders of the District Court, and remitted the matter to the District Court for a new trial. The costs of the first trial were left to the discretion of the judge presiding at the second trial, while the respondent was ordered to pay the appellant's costs of the appeal and the application for leave to appeal.