Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 Hearing dates: 30 July 2015 Decision date: 27 August 2015 Before: McColl JA at [1];
Basten JA at [2];
Leeming JA at [17]Decision: In each appeal (2015/17304 and 2015/15036):
1. Appeal allowed.
2. Set aside the judgments and orders made on 2 and 19 December 2014 save for order 7 (which was that the defendants bear their own costs of the cross-claims), and in lieu thereof, dismiss the proceedings.
3. Order that Mr Hennessy pay the appellant’s costs of the appeal, and the appellant’s costs of the proceedings at first instance, save for the costs of its cross-claim.
4. Grant Mr Hennessy a certificate under the Suitors’ Fund Act 1951 (NSW).Catchwords: TORTS – negligence – slip and fall by employee while stepping up into gatehouse at work – claims against employer and occupier – primary judge found step up into gatehouse to be “higher than normal” – occupier subsequently installed intermediate step – employee’s evidence regarded by primary judge as unreliable – no precise findings as to height of step up into gatehouse – no precise findings as to mechanism of accident – whether proper basis for findings of breach of duty and causation – findings of breach set aside – appeals by employer and occupier allowed Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D
Suitors’ Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Workers Compensation Act 1987 (NSW), s 151ZCases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Cherry v Jaymardo Pty Ltd [1998] NSWCA 57
Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356
Hackshaw v Shaw (1984) 155 CLR 614
Hennessy v Patrick Stevedores Operations [2014] NSWSC 1716
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330
Stannus v Graham (1994) Aust Torts Rep 81-293
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Thornton v Sweeney [2011] NSWCA 244; 59 MVR 155
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Wallace v Kam [2013] HCA 19; 250 CLR 375
Warth v Lafsky [2014] NSWCA 94; Aust Torts Rep 82-166
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277Category: Principal judgment Parties: 2015/17304:
Patrick Stevedores Operations (No 2)…
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- Case
- [2015] NSWCA 253
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge had a proper basis for finding a breach of duty of care and for establishing causation. Specifically, the court considered whether the findings of fact made by the primary judge, particularly regarding the height of the step and the mechanism of the accident, were sufficiently precise and supported by evidence, especially given the primary judge's reservations about the reliability of Mr Hennessy's evidence.
The Court of Appeal allowed the appeals, setting aside the primary judge's findings of breach of duty and causation. The court reasoned that the primary judge's findings were not adequately supported by the evidence. There were no precise findings as to the actual height of the step, nor were there clear findings about how the accident occurred. The court noted that the subsequent installation of an intermediate step by the occupier did not, in itself, establish negligence at the time of the incident. Consequently, the court found that the essential elements of negligence, namely breach of duty and causation, had not been proven to the requisite standard.
The Court of Appeal ordered that the appeals be allowed, the judgments and orders of the primary judge be set aside (with the exception of the costs order for cross-claims), and that Mr Hennessy's proceedings be dismissed. Mr Hennessy was ordered to pay the appellants' costs of the appeal and the costs of the proceedings at first instance, excluding the costs of the cross-claim, and was granted a certificate under the Suitors’ Fund Act 1951 (NSW).
Orders
Orders of the court
In each appeal (2015/17304 and 2015/15036):
1. Appeal allowed.
2. Set aside the judgments and orders made on 2 and 19 December 2014 save for order 7 (which was that the defendants bear their own costs of the cross-claims), and in lieu thereof, dismiss the proceedings.
3. Order that Mr Hennessy pay the appellant’s costs of the appeal, and the appellant’s costs of the proceedings at first instance, save for the costs of its cross-claim.
4. Grant Mr Hennessy a certificate under the Suitors’ Fund Act 1951 (NSW).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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