Parkes v Mt Owen Pty Ltd (No 2) - [2022] NSWSC 1179

Supreme Court

New South Wales

Medium Neutral Citation: Parkes v Mt Owen Pty Ltd & Anor (No 2) [2022] NSWSC 1179
Hearing dates: 1 September 2022
Date of orders: 1 September 2022
Decision date: 01 September 2022
Jurisdiction: Common Law
Before: Campbell J
Decision:
Conditional stay granted

Legislation Cited:
Civil Liability Act 2002 (NSW)
Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:
Parkes v Mount Owen Pty Ltd & Anor [2022] NSWSC 909.
TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47

Category: Consequential orders
Parties: Glen Matthew Parkes (Plaintiff)
Mt Owen Pty Limited (Defendant)
Titan Technicians Enterprise Pty Ltd (Second Defendant)
Representation: Counsel:
I. Roberts SC with R Foord (Plaintiff)
R.A. Brown (First Defendant)
L. King SC (Second Defendant)

File Number(s): 2019/133481

Judgment

I gave judgment for the plaintiff on 7 July 2022 against both defendants: Parkes v Mount Owen Pty Ltd & Anor [2022] NSWSC 909. The first defendant has filed a Notice of Intention to Appeal on 4 August 2022 and by notice of motion seeks a stay of proceedings.
The judgment against the first defendant assessed in conformity with the Civil Liability Act 2002 (NSW) is in the sum of $2,030,953. The judgment against the second defendant assessed in accordance with the coal miner provisions of the Workers Compensation Act 1987 (NSW) is in the sum of $1,965,145.
The proposed grounds of appeal have not been settled, however, from the affidavit of Ms Beau-Francis sworn on 25 August 2022 and from the written submissions of Mr R A Brown of counsel, I understand that the challenges to the judgment in favour of Mr Parkes cover three areas. Not in any particular order, they are: my finding that Mr Parkes was not guilty of contributory negligence; my finding that the first defendant owed a duty of care to Mr Parkes on the quasi employment basis discussed in TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 which duty he had breached; and my finding that it was vicariously liable for the negligence of a Mr Kemp whom I determined was an employee of the first defendant pro hac vice.
I am prepared to assume that although I have not seen the grounds of appeal, that each contested area may be fairly arguable in the Court of Appeal, although they may not all be of equal merit. The outcome of the appeal as things presently stand will be that even if the first defendant is entirely successful in its appeal and was absolved of any legal responsibility whatsoever for Mr Parkes' accident and his injuries, subject to the issue about contributory negligence, the second defendant as employer would be liable, first, for breach of its personal non delegable duty of care and secondly, vicariously for the negligence of Mr Kemp, who was in its general employment.
The principles governing the grant of a stay of judgment pending an appeal are, I think, well understood…

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: [2022] NSWSC 1179
Decision Date: 01 September 2022

CaseChat Overview and Summary

In the case of Parkes v Mt Owen Pty Ltd (No 2), the plaintiff, Glen Matthew Parkes, sought to recover damages from the defendants, Mt Owen Pty Ltd and Titan Technicians Enterprise Pty Ltd, following a workplace accident. The matter was before Campbell J in the Supreme Court of New South Wales. The primary legal issues that the court was required to decide involved the assessment of the damages payable to the plaintiff, the applicability of the Civil Liability Act 2002 (NSW) and the Workers Compensation Act 1987 (NSW), and the appropriate conditions for a stay of proceedings pending an appeal.

The court carefully considered the evidence and submissions from the parties, ultimately deciding to grant a conditional stay of the proceedings pending the outcome of the first defendant's appeal. The court balanced the competing considerations of ensuring that a successful litigant is not deprived of the fruits of their litigation, while also acknowledging the liable party's statutory right of appeal. In this case, the court was satisfied that the plaintiff, who was unemployed and had no substantial property, would be unable to promptly repay any large sum paid to him if it were later determined to be refundable. The court noted that if the first defendant were successful in its appeal, any moneys paid to the plaintiff would be recoverable from the second defendant. The court further considered the potential liability of the second defendant and decided that an appropriate figure for the conditional stay would be $1.4 million, which would cover the prospect of a finding of contributory negligence.

The final orders of the court were that the judgments and orders entered on 15 July 2022 following the decision of 7 July 2022 were stayed pending the disposition of the first defendant's proposed appeal, on the condition that the first defendant pay to the plaintiff on account of damages the sum of $1,400,000. The parties' costs of the motion were to be costs in the cause.

Orders