Nankervis v Ulan Coal Miles Ltd - [1999] NSWSC 899

CITATION: Nankervis v Ulan Coal Miles Ltd & Anor [1999] NSWSC 899

CURRENT JURISDICTION:

FILE NUMBER(S): CW500025/97

HEARING DATE(S): 24 August 1999

JUDGMENT DATE:
24 August 1999

PARTIES :

Michael Francis Nankervis
Ulan Coal Mines Ltd and Anor

JUDGMENT OF: Wood CJatCL

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER:

COUNSEL : S.E. Torrington (Plaintiff)
B.G. Smith (1D)
Turnbull (2D)

SOLICITORS: Barry Crosier (P)
Sparke Helmore (1D)
Phillips Fox (2D)

CATCHWORDS:

DECISION: Jury dispensed with. Costs reserved

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

TUESDAY 24 AUGUST 1999

CW500025/97 -

MICHAEL FRANCIS NANKERVIS v ULAN COAL MINES LIMITED AND ANOTHER
JUDGMENT

1 HIS HONOUR: The plaintiff has, in this matter, sought orders that the jury be dispensed with, and that the cross-claims, brought by the two defendants against each other, be heard separately from the action that the plaintiff has brought against them. 2 The proceedings concern a claim for damages for personal injuries sustained by the plaintiff on 2 February 1997, when a wheel rim fitted to a shuttle car, used in the coal mine of the first defendant, failed, causing him to be struck by a steel flange. 3 The plaintiff has framed his claim against the first defendant for breach of the duty of care owed to him by that party as his employer, both in tort and pursuant to a term implied in the contract of employment. 4 The claim against the second defendant is brought for breach of the duty of care it is alleged to have owed, as a party engaged under a contract with the first defendant, to supply, service and carry out repairs to the tyres and wheels fitted to the machinery used by the first defendant in its mine. 5 The first defendant has pleaded that the plaintiff is guilty of contributory negligence. The second defendant has not pleaded such defence. Each defendant, however, has placed its own liability in issue. It is understood, from the submissions addressed on the motion this morning, that each seeks to pass the blame to the other. In that regard the first defendant has foreshadowed that it proposes to argue that the non delegable duty of care, vested in it as employer, was discharged by engaging an experienced contractor in the relevant area. 6 The first defendant has brought a cross-claim against the second defendant for contribution or indemnity. Such claim is pursued upon the basis of the alleged liability of that party as a tort feasor under the Law Reform (Miscellaneous Provisions) Act 1946. Additionally, reliance is placed upon an express indemnity provision said to arise by contract, as well as upon alleged breaches of terms as to performance, fitness of purpose and merchantability, either arising expressly or impliedly under terms of the contract, or under section 70(1)(i) and section 70(1)(ii) of the Trade Practices Act. 7 The second defendant has, similarly, brought a cross-claim for contribution or indemnity against 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.

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Details

Case: [1999] NSWSC 899
Decision Date: 24 August 1999

CaseChat Overview and Summary

In the case of Nankervis v Ulan Coal Miles Ltd, the plaintiff, Michael Francis Nankervis, sought damages for personal injuries he sustained on 2 February 1997 when a wheel rim fitted to a shuttle car in the coal mine of the first defendant failed, causing him to be struck by a steel flange. The plaintiff brought a claim against the first defendant, Ulan Coal Mines Ltd, for breach of the duty of care owed to him as his employer, both in tort and under a term implied in the contract of employment. The plaintiff also brought a claim against the second defendant for breach of the duty of care allegedly owed to supply, service, and carry out repairs to the tyres and wheels fitted to the machinery used by the first defendant in its mine. The first defendant pleaded that the plaintiff was guilty of contributory negligence, while the second defendant did not plead such defence. Both defendants placed their liability in issue and sought to pass the blame to each other.

The legal issues the court was required to decide included the plaintiff's claims for damages against both defendants, the first defendant's cross-claim against the second defendant for contribution or indemnity, and the second defendant's cross-claim for contribution or indemnity against the first defendant. The court had to consider the complexity of the issues involved, the potential length of the trial, and the inconvenience to medical practitioners if the trial were to proceed as a jury trial. The court also had to determine whether the questions of indemnity or contribution should be heard separately from the plaintiff's case.

The court decided that the jury should be dispensed with due to the complexity of the issues involved and the potential length of the trial. The court believed that the matter could not be conveniently or properly determined by the jury. The court also decided that the questions of indemnity or contribution did not need to be heard separately from the plaintiff's case and could be conveniently heard during the Dubbo sittings in a non-jury trial. The court ordered that the jury be dispensed with and reserved the costs.

This case highlights the importance of considering the complexity of issues involved and the potential length of the trial when deciding whether to dispense with a jury. It also demonstrates the court's discretion in determining whether questions of indemnity or contribution should be heard separately from the plaintiff's case.

Orders