New South Wales
Court of Appeal
CITATION: Macey v Macquarie Generation & Anor [2009] NSWCA 79 HEARING DATE(S): 9 December 2008
JUDGMENT DATE:
9 April 2009JUDGMENT OF: Beazley JA at 1; Campbell JA at 55; Gyles AJA at 57 DECISION: 1. Appeal dismissed with costs;
2. Cross-appeal dismissed with costs.CATCHWORDS: JUDGES AND COURTS - challenge to inferences and findings of trial judge – inferences and findings open to trial judge - appellate inference not required - TORTS - negligence- duty of care owed by occupier- duty to provide instructions to workers – duty owed where instructions might reasonably be thought to be required to secure workers from danger – instructions not required in this case - TORTS - negligence- generalised duty of care- test for foreseeability of risk – simple uncomplicated operations by an employee within the normal system of work – content of duty in this case did not include the provision of instructions - COSTS – offer to fully indemnify party with respect to liability and costs – offer rejected – circumstances in which offer rejected unreasonable – costs not awarded to party who rejected offer LEGISLATION CITED: Occupational Health and Safety Act 2000
Supreme Court Act 1970, s 75ACATEGORY: Principal judgment CASES CITED: Fox v Percy [2003] HCA 22; 214 CLR 118
Imbree v McNeilly [2008] HCA 40; (2008) 248 ALR 647
O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40PARTIES: Jason Macey (Appellant)
Macquarie Generation (First Respondent/First Cross-Claimant)
HIS Engineering Services Pty Ltd (Second Respondent/First Cross-Defendant)FILE NUMBER(S): CA 40861/07 COUNSEL: J Sexton SC; C Hart (Appellant)
L King SC; P Menary; J Spinak (First Respondent/First Cross-Claimant)
K P Rewell SC; D Shoebridge (Second Respondent/First Cross-Defendant)SOLICITORS: Bale Boshev Lawyers (Appellant)
Sparke Helmore (First Respondent/First Cross-Claimant)
Fisher Cartwright Berriman (Second Respondent/First Cross-Defendant)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): Newcastle 56 of 2006 LOWER COURT JUDICIAL OFFICER: Sidis DCJ LOWER COURT DATE OF DECISION: 22 November 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Macey v Macquarie Generation and HIS Engineering Pty Ltd [2007] NSWDC 242
CA 40479/079 April 2009BEAZLEY JA
CAMPBELL JA
GYLES AJA
Jason Andrew Macey v Macquarie Generation & Anor
Headnote
The appellant injured his right shoulder on 25 April 2003 as he was climbing through a manhole at Bayswater Power Station. The appellant was employed by HIS Engineering Services Pty Limited (HIS Engineering), which was undertaking contract maintenance work at Bayswater Power Station. The appellant brought proceedings against Macquarie Generation (Macquarie), which occupied and operated Bayswater Power Station at the time. He alleged Macquarie had breached its duty of care to him under the Occupational Health and Safety Act 2000, including its duty to instruct him on a safe way to enter the manhole. Macquarie cross-claimed…
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Details
- AGLC
- Macey v Macquarie Generation [2009] NSWCA 79
- Case
- [2009] NSWCA 79
- Decision Date
CaseChat Overview and Summary
The appeal concerned a challenge to the inferences and findings of a trial judge in a negligence claim brought by the appellant, Macey, against the respondents, Macquarie Generation and another party. The court was required to determine whether the inferences and findings made by the trial judge were open to them, and whether an appellate court was required to draw different inferences.
The central legal issues revolved around the tort of negligence, specifically the duty of care owed by an occupier to workers. The court had to consider whether Macquarie Generation owed a duty to provide instructions to workers, particularly where such instructions might reasonably be thought necessary to secure workers from danger. Furthermore, the court examined the generalised duty of care and the test for foreseeability of risk in the context of simple, uncomplicated operations undertaken by an employee within the normal system of work. The question arose as to whether the content of the duty in this case extended to providing specific instructions.
The court reasoned that the trial judge's inferences and findings were open to them, and an appellate inference was not required. The court found that the operations undertaken by the employee were simple and uncomplicated, falling within the normal system of work. Consequently, the court determined that the duty of care owed by Macquarie Generation did not include the provision of specific instructions in these circumstances. The court also considered an offer made by the respondents to fully indemnify the appellant with respect to liability and costs, which had been rejected. The court found that the rejection of this offer was unreasonable.
The appeal was dismissed with costs, and the cross-appeal was also dismissed with costs.
The central legal issues revolved around the tort of negligence, specifically the duty of care owed by an occupier to workers. The court had to consider whether Macquarie Generation owed a duty to provide instructions to workers, particularly where such instructions might reasonably be thought necessary to secure workers from danger. Furthermore, the court examined the generalised duty of care and the test for foreseeability of risk in the context of simple, uncomplicated operations undertaken by an employee within the normal system of work. The question arose as to whether the content of the duty in this case extended to providing specific instructions.
The court reasoned that the trial judge's inferences and findings were open to them, and an appellate inference was not required. The court found that the operations undertaken by the employee were simple and uncomplicated, falling within the normal system of work. Consequently, the court determined that the duty of care owed by Macquarie Generation did not include the provision of specific instructions in these circumstances. The court also considered an offer made by the respondents to fully indemnify the appellant with respect to liability and costs, which had been rejected. The court found that the rejection of this offer was unreasonable.
The appeal was dismissed with costs, and the cross-appeal was also dismissed with costs.
Orders
Orders of the court
1. Appeal dismissed with costs; 2. Cross-appeal dismissed with costs.
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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