McArdle v Americold Logistics Limited

District Court

New South Wales

Medium Neutral Citation:	McArdle v Americold Logistics Limited [2017] NSWDC 332
Hearing dates:	21, 22, 23 and 24 August 2017
Date of orders:	23 November 2017
Decision date:	23 November 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant against the plaintiff. (2) Plaintiff pay defendant’s costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT – personal injury – injury in the course of work duties – whether injury caused by negligence of defendant – expert evidence issues - causation – contributory negligence – s 151Z Workers Compensation Act - quantum of damages - no issue of principle
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5R and 15 Workers Compensation Act 1987 (NSW), s 151Z
Cases Cited:	Beaven v Wagner Industrial Services Pty Ltd [2017] QCA 246 Czatyrko v Edith Cowan University (2005) 214 ALR 349 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Fox v Wood (1981) 148 CLR 438 Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43 Hennessy v Patrick Stevedores Operations [2014] NSWSC 1716 Kay v Sydney Airport Corporation Limited [2014] NSWSC 744 Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 R v Turner [1975] QB 834 White v Logen Pty Ltd as Trustee for Byrn Family Trust [2014] NSWCA 159 Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:	Principal judgment
Parties:	Plaintiff: David McArdle Defendant: Americold Logistics Limited (ACN 004 902 998)
Representation:	Counsel: Plaintiff: Mr A D Campbell Defendant: Mr P S Jones   Solicitors: Plaintiff: Law Partners Compensation Lawyers Defendant: HWL Ebsworth
File Number(s):	2015/309809
Publication restriction:	None

Judgment

The parties and the proceedings before the court

1. The plaintiff brings proceedings for damages for an injury he suffered on 19 November 2013 while working at the defendant’s premises at Prospect in the State of New South Wales.

2. The defendant provides temperature-controlled warehouses for the storage and packing of goods which are packed and transferred in bulk from the premises to locations around Australia. The plaintiff was working as what is called a “picker and packer” at the defendant’s premises by reason of a contract the defendant had with a labour hire company (hereafter “Rush Recruitment”) to provide workers Rush Recruitment provided.

3. The circumstances in which the plaintiff was injured are as follows. The plaintiff had commenced work at the defendant’s premises in September 2013 as a “pick and packer” at its premises at Prospect. He was transferred to the freezer section the day before the accident to carry out the collection and packing of “Chrisco” packages (occasionally misspelled in the transcript as “Crisco”), which were individual Christmas hampers pre-ordered by customers direct (as opposed to the large supermarket chains for which the company more usually prepared packaging of refrigerated or frozen goods). The accident occurred…