Madden v Kingston Industries - [2005] NSWCA 440

CITATION:
Madden v Kingston Industries [2005] NSWCA 440
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
20 September 2005

JUDGMENT DATE:

13 December 2005

JUDGMENT OF:
Handley JA at 1; Basten JA at 2; Young CJ in Eq at 35

DECISION:
(1) Appeal allowed; (2) Set aside the judgment and orders of the District Court in favour of the Respondent; (3) Remit the matter to the District Court for retrial; (4) Order the costs of the first trial to abide the order of the judge presiding at the second trial; (5) Order the Respondent to pay the Appellant’s costs of the appeal; (6) Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified

CATCHWORDS:
NEGLIGENCE - employee injured his back when he emptied water from wheelbarrow - whether employer breached its duty of care to provide a safe system of work - proceedings involved two causes of action - cumulative effect of strenuous effort over a period of weeks and failure to train employee in proper use of wheelbarrow - employer failed to consider reasonable steps which could have been taken to remove or minimise forseeable risks of injury - whether retrial should be refused on the basis that even if total claim divided equally between the two causes of action, the appellant would not reach the threshold in s151G(4) of the Workers Compensation Act 1987 (NSW) or that neither cause of action caused injury greater than 17% of a most extreme case.

LEGISLATION CITED:
Workers Compensation Act 1987 (NSW)

CASES CITED:
Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228
Woolage v State of New South Wales [2001] NSWCA 256

PARTIES:
Mark Madden (Appellant)
Kingston Industries Pty Ltd (Respondent)

FILE NUMBER(S):
CA 40626/04

COUNSEL:
Ms S. Norton SC/Ms E. Welsh (Appellant)
Mr E Elkaim SC/Mr A.B. Parker (Respondent)

SOLICITORS:
Bryden's Law Office (Appellant)
Lander & Rodgers (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 13288/01

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

CA 40626/2004
DC 1322/2001
DC 13288/2001

HANDLEY JA
BASTEN JA
YOUNG CJ in Eq
13 December 2005

MARK MADDEN v KINGSTON INDUSTRIES PTY LTD

Judgment

1 HANDLEY JA: I agree with Basten JA.

2 BASTEN JA: On 12 May 2000 the Appellant, Mr Mark Madden, suffered a back injury at work, whilst emptying water from a wheelbarrow. He made a claim for damages against his employer, based primarily on the nature and conditions of the work he was required to undertake.

3 In the District Court, the trial judge accepted that he had suffered an injury in the course of his employment, but was not satisfied that his injury resulted from a breach of duty by the employer, the Respondent in this Court.

4 The course of employment required, over a period of some two months, heavy physical labour. The work required the digging of trenches, the laying and cementing of underground piping and the…

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.

Keep reading for free

Create a free CaseChat account to read Madden v Kingston Industries and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWCA 440
Decision Date: 13 December 2005

CaseChat Overview and Summary

In *Madden v Kingston Industries*, the appellant, an employee, appealed a District Court judgment concerning injuries sustained to his back. The dispute arose from the appellant's claim that his employer, the respondent, had breached its duty of care to provide a safe system of work. The proceedings involved two distinct causes of action: the cumulative effect of strenuous effort over several weeks and the respondent's alleged failure to train the appellant in the proper use of a wheelbarrow.

The court was required to determine whether the employer had breached its duty of care by failing to consider reasonable steps to remove or minimise foreseeable risks of injury. Furthermore, the court had to consider whether a retrial should be refused on the grounds that the appellant's total claim, even if divided equally between the two causes of action, would not meet the threshold stipulated in s 151G(4) of the *Workers Compensation Act 1987* (NSW), or that neither cause of action independently caused an injury exceeding 17% of a most extreme case.

The appellate court allowed the appeal, setting aside the District Court's judgment in favour of the respondent. The matter was remitted to the District Court for a retrial. The costs of the first trial were ordered to abide the outcome of the second trial, while the respondent was ordered to pay the appellant's costs of the appeal. The respondent was also granted a certificate under the *Suitors’ Fund Act 1951* (NSW), provided they met the eligibility criteria.

Orders

Orders of the court

(1) Appeal allowed; (2) Set aside the judgment and orders of the District Court in favour of the Respondent; (3) Remit the matter to the District Court for retrial; (4) Order the costs of the first trial to abide the order of the judge presiding at the second trial; (5) Order the Respondent to pay the Appellant’s costs of the appeal; (6) Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Madden v Kingston Industries [2005] NSWCA 440 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20 September 2005
JUDGMENT DATE:	13 December 2005
JUDGMENT OF:	Handley JA at 1; Basten JA at 2; Young CJ in Eq at 35
DECISION:	(1) Appeal allowed; (2) Set aside the judgment and orders of the District Court in favour of the Respondent; (3) Remit the matter to the District Court for retrial; (4) Order the costs of the first trial to abide the order of the judge presiding at the second trial; (5) Order the Respondent to pay the Appellant’s costs of the appeal; (6) Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified

CATCHWORDS:	NEGLIGENCE - employee injured his back when he emptied water from wheelbarrow - whether employer breached its duty of care to provide a safe system of work - proceedings involved two causes of action - cumulative effect of strenuous effort over a period of weeks and failure to train employee in proper use of wheelbarrow - employer failed to consider reasonable steps which could have been taken to remove or minimise forseeable risks of injury - whether retrial should be refused on the basis that even if total claim divided equally between the two causes of action, the appellant would not reach the threshold in s151G(4) of the Workers Compensation Act 1987 (NSW) or that neither cause of action caused injury greater than 17% of a most extreme case.
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW)
CASES CITED:	Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228 Woolage v State of New South Wales [2001] NSWCA 256
PARTIES:	Mark Madden (Appellant) Kingston Industries Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40626/04
COUNSEL:	Ms S. Norton SC/Ms E. Welsh (Appellant) Mr E Elkaim SC/Mr A.B. Parker (Respondent)
SOLICITORS:	Bryden's Law Office (Appellant) Lander & Rodgers (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13288/01
LOWER COURT JUDICIAL OFFICER:	Nield DCJ