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

1. 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.

2. 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.

3. 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.

4. 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.

5. The principles governing the grant of a stay of judgment pending an appeal are, I think, well understood and the relevant authorities have been set out in Mr Brown's written submissions. It is unnecessary for me to refer to them here. Those principles seek to balance two competing fundamental considerations. The first is that a successful litigant should not be deprived of the fruits of its litigation. The second is that a liable party's statutory right of appeal ought not be rendered nugatory by payment of substantial damages to a successful party in circumstances where the successful party is unlikely to be in a position to promptly repay the damages.

6. I accept from the findings made as summarised in Ms Beau-Francis' affidavit that Mr Parkes is a young man who is presently unemployed and has been for some years because of his incapacity. He owns no substantial property. I have no doubt that as between him and the first defendant, were a large sum paid to him, that was refundable upon the successful conclusion of the first defendant's appeal, he would be in no position to promptly repay it with interest.

7. However, this case is not like a standard case between plaintiff and a single defendant for the reasons I have already addressed in relation to the second defendant's legal liability if the first defendant's appeal is successful. There is no doubt, as has been made clear in the argument before me, that should the first defendant be successful in its appeal, then any moneys paid to the plaintiff would be recoverable from the second defendant by the first defendant and that the Court of Appeal has ample powers to make such a restitutionary order at the conclusion of the appeal.

8. The only question remaining is the appropriate amount. I have discussed with Mr Roberts SC who appears with Mr Foord for the plaintiff, Mr King SC who appears for the second defendant and Mr Brown that given what I have said about the default position as to where liability will reside, perhaps the better approach is to work on the basis of the work injury damages rather than the Civil Liability Act damages.

9. If I take a starting point of $1.9 million to round things down, for conservatism's sake, and reduce that amount to cover the prospect of a finding of contributory negligence in the Court of Appeal, an appropriate figure is $1.4 million. At the hearing before me the first defendant argued that an appropriate assessment of contributory negligence was 25 per cent. The amount that I have notionally allowed of $500,000 comfortably covers that assessment starting from, as I have said, the work injury damages position rather than the civil liability position.

10. I propose to grant a stay on that condition.

11. I should say that part of the argument before me related to Mr Parkes's liability to refund the worker's compensation insurer under the provisions of s 151Z(1)(b) of the Workers Compensation Act. I am of the view that upon payment of the sum of $1.4 million, he will be liable to repay the workers compensation which amounts to about $200,000. There is no question in my mind about the recovery of the full amount of any payment on account of damages made by the first defendant as a condition of the stay from the second defendant.

12. My orders are

1. The judgments and orders entered on 15 July 2022 following my decision of 7 July 2022 are stayed pending the disposition of the first defendant’s proposed appeal on condition that the first defendant pay to the plaintiff on account of damages the sum of $1,400,000.

2. The parties’ costs of the motion are costs in the cause.

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