Magnou v Australian Wool Testing Authority Ltd - [2007] NSWCA 357

New South Wales

Court of Appeal

CITATION: Antonio Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357

HEARING DATE(S): 13 March 2007

JUDGMENT DATE:
12 December 2007

JUDGMENT OF: Tobias JA; McColl JA; Handley AJA

DECISION: (a) Appeal allowed.; (b) Cross-appeal dismissed.; (c) Verdict and judgment of Puckeridge DCJ dated 16 May 2005 set aside except as to liability.; (d) There be a new trial limited to damages.; (e) The orders made by Puckeridge DCJ on 19 May 2005 that; (i) the respondent pay the appellant’s costs of the application to amend the statement of claim made on 11 October 2004, and; (ii) the appellant to pay the respondent’s costs of the day of an adjournment on 12 October 2004,; be confirmed. ; (f) Set aside the other orders for costs made by his Honour on 19 May 2005. ; (g) Save as to the orders for costs referred to in (e) above, the costs of the proceedings in the District Court to date to abide the order of the Judge presiding at the new trial. ; (h) The respondent to pay the appellant’s costs of the appeal and cross-appeal but to have a certificate under the Suitors’ Fund Act, 1951, if otherwise qualified.

CATCHWORDS: APPEAL AND NEW TRIAL - Insufficient findings of primary fact - Inadequate reasons - No question of principle - NEGLIGENCE - Unsafe system of work - Damages - Insufficient findings of primary fact - Inadequate reasons - No question of principle

LEGISLATION CITED: Workers Compensation Act 1987

CASES CITED: Chung v Anderson [2004] NSWCA 321
Commonwealth of Australia v McLean (1996) 41 NSWLR 389
Fox v Wood (1981) 148 CLR 438
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Rabay & Anor v Bristow [2005] NSWCA 199
Wynn v New South Wales Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485

PARTIES: Antonio Magnou (Appellant/Cross respondent)
Australian Wool Testing Authority Ltd (Respondent/Cross appellant)

FILE NUMBER(S): CA 40477/05

COUNSEL: G B Hall QC with D Elliott (Appellant/Cross respondent)
P W Neil SC with C M Egan (Respondent/Cross appellant)

SOLICITORS: Gerard Malouf & Partners (Appellant/Cross respondent)
Ellison Tillyard Callanan (Respondent/Cross appellant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 8070/01

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

LOWER COURT DATE OF DECISION: 16, 22 May 2005

- 18 -

CA 40477/05
DC 8070/01

TOBIAS JA
McCOLL JA
HANDLEY AJA
Wednesday 12 December 2007

ANTONIO MAGNOU v AUSTRALIAN WOOL TESTING AUTHORITY LTD

APPEAL AND NEW TRIAL - Insufficient findings of primary fact - Inadequate reasons - No question of principle

NEGLIGENCE - Unsafe system of work - Damages - Insufficient findings of primary fact - Inadequate reasons - No question of principle

The appellant who worked for the Respondent as a wool classer in dusty conditions developed industrial asthma and had to give up his job. He sued his employer for breach of its duty to provide a safe system of work. The Trial Judge found negligence…

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: [2007] NSWCA 357
Decision Date: 12 December 2007

CaseChat Overview and Summary

The appeal in *Magnou v Australian Wool Testing Authority Ltd* concerned a dispute where the appellant, Mr. Magnou, alleged negligence against the respondent, the Australian Wool Testing Authority Ltd, for an unsafe system of work. The case was heard in the Court of Appeal of New South Wales, with Tobias JA, McColl JA, and Handley AJA presiding.

The primary legal issues before the Court of Appeal were whether the primary judge had made insufficient findings of fact and provided inadequate reasons for their decision, particularly concerning the assessment of damages. The court was required to determine if these deficiencies warranted setting aside the original verdict and judgment, and if so, to what extent.

The Court of Appeal found that the primary judge's findings of fact and reasons were inadequate, especially in relation to the assessment of damages. Consequently, the court allowed the appeal and dismissed the cross-appeal. The original verdict and judgment were set aside, except for the finding of liability. A new trial was ordered, limited specifically to the issue of damages. Certain costs orders from the District Court were confirmed, while others were set aside, with the costs of the District Court proceedings to date to abide the outcome of the new trial. The respondent was ordered to pay the appellant's costs of the appeal and cross-appeal.

Orders

Orders of the court

(a) Appeal allowed.; (b) Cross-appeal dismissed.; (c) Verdict and judgment of Puckeridge DCJ dated 16 May 2005 set aside except as to liability.; (d) There be a new trial limited to damages.; (e) The orders made by Puckeridge DCJ on 19 May 2005 that; (i) the respondent pay the appellant's costs of the application to amend the statement of claim made on 11 October 2004, and; (ii) the appellant to pay the respondent's costs of the day of an adjournment on 12 October 2004,; be confirmed. ; (f) Set aside the other orders for costs made by his Honour on 19 May 2005. ; (g) Save as to the orders for costs referred to in (e) above, the costs of the proceedings in the District Court to date to abide the order of the Judge presiding at the new trial. ; (h) The respondent to pay the appellant's costs of the appeal and cross-appeal but to have a certificate under the Suitors' Fund Act, 1951, 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:	Antonio Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357
HEARING DATE(S):	13 March 2007
JUDGMENT DATE:	12 December 2007
JUDGMENT OF:	Tobias JA; McColl JA; Handley AJA
DECISION:	(a) Appeal allowed.; (b) Cross-appeal dismissed.; (c) Verdict and judgment of Puckeridge DCJ dated 16 May 2005 set aside except as to liability.; (d) There be a new trial limited to damages.; (e) The orders made by Puckeridge DCJ on 19 May 2005 that; (i) the respondent pay the appellant’s costs of the application to amend the statement of claim made on 11 October 2004, and; (ii) the appellant to pay the respondent’s costs of the day of an adjournment on 12 October 2004,; be confirmed. ; (f) Set aside the other orders for costs made by his Honour on 19 May 2005. ; (g) Save as to the orders for costs referred to in (e) above, the costs of the proceedings in the District Court to date to abide the order of the Judge presiding at the new trial. ; (h) The respondent to pay the appellant’s costs of the appeal and cross-appeal but to have a certificate under the Suitors’ Fund Act, 1951, if otherwise qualified.
CATCHWORDS:	APPEAL AND NEW TRIAL - Insufficient findings of primary fact - Inadequate reasons - No question of principle - NEGLIGENCE - Unsafe system of work - Damages - Insufficient findings of primary fact - Inadequate reasons - No question of principle
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Chung v Anderson [2004] NSWCA 321 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Fox v Wood (1981) 148 CLR 438 Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Rabay & Anor v Bristow [2005] NSWCA 199 Wynn v New South Wales Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485
PARTIES:	Antonio Magnou (Appellant/Cross respondent) Australian Wool Testing Authority Ltd (Respondent/Cross appellant)
FILE NUMBER(S):	CA 40477/05
COUNSEL:	G B Hall QC with D Elliott (Appellant/Cross respondent) P W Neil SC with C M Egan (Respondent/Cross appellant)
SOLICITORS:	Gerard Malouf & Partners (Appellant/Cross respondent) Ellison Tillyard Callanan (Respondent/Cross appellant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 8070/01
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ
LOWER COURT DATE OF DECISION:	16, 22 May 2005