P & M Quality Smallgoods Pty Ltd v Leap Seng - [2013] NSWCA 167

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167
Hearing dates: 18 February 2013
Decision date: 12 June 2013
Before: Barrett JA (at [1]); Hoeben JA (at [103]); Tobias AJA (at [106])
Decision:
1. Grant leave to the appellants to amend their notice of appeal by adding the following ground of appeal:
"The primary judge erred in the exercise of his discretionary assessment that Kaybron No 24 Pty Ltd ought to bear 10 per cent of the culpability involved in the accident in question."
2. Appeal allowed.
3. Set aside the judgment and orders of the District Court.
4. In lieu thereof, order that the District Court proceedings be dismissed with costs.
5. That the respondent pay the appellants' costs of the appeal.
6. Order that the respondent be granted a certificate under the Suitors Fund Act 1951, if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - workplace injury - plaintiff injured by trolley pushed by co-worker - identification of co-worker's employer - that employer was not the defendants - no vicarious liability of the defendants for negligence of the co-worker - workplace and systems controlled by the defendants - whether duty of care owed by them accordingly - whether duty breached - whether duty of care also owed by plaintiff's employer which had no control of workplace and systems - whether defendants entitled to contribution from plaintiff's employer - damages for non-economic loss - whether injury shown to meet threshold of 15 per cent of most extreme case - damages for economic loss - where causes of disability other than the workplace injury operated - whether relevant causation proved - observations on the need for evidence from treating doctors in cases of this kind
Legislation Cited: Civil Liability Act 2002, ss 5B, 5D, 5E, 5Q, 15(3), 16
Workers Compensation Act 1987, s 151Z(2)
Cases Cited: Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114
Leighton Contractors v Fox [2009] HCA 35; (2009) 240 CLR 1
Morvatjou v Moradkhani [2013] NSWCA 157
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Stevens v Brodribb Sawmilling [1986] HCA 1; (1986) 160 CLR 15
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Category: Principal judgment
Parties: P & M Quality Smallgoods Pty Limited - First Appellant
Trustees…

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: [2013] NSWCA 167
Decision Date: 12 June 2013

CaseChat Overview and Summary

The appeal concerned a workplace injury sustained by the plaintiff, Mr. P & M Quality Smallgoods Pty Ltd, who was injured by a trolley pushed by a co-worker. The central dispute revolved around the identification of the co-worker's employer and whether the defendants, who controlled the workplace and its systems, were vicariously liable for the co-worker's negligence. The case was heard in the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal included whether the defendants owed a duty of care to the plaintiff, whether that duty was breached, and whether the defendants were entitled to contribution from the plaintiff's employer. The court also considered the assessment of damages, specifically whether the plaintiff's injury met the threshold for non-economic loss and the extent to which other causes of disability impacted the assessment of economic loss, with observations made on the necessity of evidence from treating doctors.

The Court of Appeal found that the co-worker was not employed by the defendants, thus negating vicarious liability. Despite the defendants controlling the workplace and systems, the court determined that the primary judge erred in finding them liable. Consequently, the appeal was allowed, the judgment of the District Court was set aside, and the proceedings were dismissed with costs. The respondent was ordered to pay the appellants' costs of the appeal and was granted a certificate under the Suitors Fund Act 1951, if qualified.

Orders

Orders of the court

1. Grant leave to the appellants to amend their notice of appeal by adding the following ground of appeal:

"The primary judge erred in the exercise of his discretionary assessment that Kaybron No 24 Pty Ltd ought to bear 10 per cent of the culpability involved in the accident in question."

2. Appeal allowed.

3. Set aside the judgment and orders of the District Court.

4. In lieu thereof, order that the District Court proceedings be dismissed with costs.

5. That the respondent pay the appellants' costs of the appeal.

6. Order that the respondent be granted a certificate under the Suitors Fund Act 1951, if qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Medium Neutral Citation:	P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167
Hearing dates:	18 February 2013
Decision date:	12 June 2013
Before:	Barrett JA (at [1]); Hoeben JA (at [103]); Tobias AJA (at [106])
Decision:	1. Grant leave to the appellants to amend their notice of appeal by adding the following ground of appeal: "The primary judge erred in the exercise of his discretionary assessment that Kaybron No 24 Pty Ltd ought to bear 10 per cent of the culpability involved in the accident in question." 2. Appeal allowed. 3. Set aside the judgment and orders of the District Court. 4. In lieu thereof, order that the District Court proceedings be dismissed with costs. 5. That the respondent pay the appellants' costs of the appeal. 6. Order that the respondent be granted a certificate under the Suitors Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - workplace injury - plaintiff injured by trolley pushed by co-worker - identification of co-worker's employer - that employer was not the defendants - no vicarious liability of the defendants for negligence of the co-worker - workplace and systems controlled by the defendants - whether duty of care owed by them accordingly - whether duty breached - whether duty of care also owed by plaintiff's employer which had no control of workplace and systems - whether defendants entitled to contribution from plaintiff's employer - damages for non-economic loss - whether injury shown to meet threshold of 15 per cent of most extreme case - damages for economic loss - where causes of disability other than the workplace injury operated - whether relevant causation proved - observations on the need for evidence from treating doctors in cases of this kind
Legislation Cited:	Civil Liability Act 2002, ss 5B, 5D, 5E, 5Q, 15(3), 16 Workers Compensation Act 1987, s 151Z(2)
Cases Cited:	Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 Leighton Contractors v Fox [2009] HCA 35; (2009) 240 CLR 1 Morvatjou v Moradkhani [2013] NSWCA 157 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Stevens v Brodribb Sawmilling [1986] HCA 1; (1986) 160 CLR 15 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Category:	Principal judgment
Parties:	P & M Quality Smallgoods Pty Limited - First Appellant Trustees…