Paul v Ashcroft Supa IGA Orange Pty Ltd - [2019] NSWDC 101

District Court

New South Wales

Medium Neutral Citation: Paul v Ashcroft Supa IGA Orange Pty Ltd [2019] NSWDC 101
Hearing dates: 26 and 27 March 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
On the plaintiff’s claim:
(1) Judgment for the plaintiff against the defendant for $578,689.11.
(2) Order the defendant to pay the plaintiff’s costs.
(3) Grant leave to approach my Associate within 7 days if either party seeks a different costs order.

On the cross-claim:
(1)   Judgment for the cross-claimant against the cross-defendant for $578,689.11.
(2)   Judgment for the cross-claimant against the cross-defendant for the costs which the defendant has been ordered to pay to the plaintiff, such costs to be as agreed or assessed between the plaintiff and the defendant.
(3)   Order the cross-defendant to pay the cross-claimant’s costs of the cross-claim on an indemnity basis.
(4)   Grant leave to approach my associate within 7 days if either party seeks a different costs order.
Catchwords: NEGLIGENCE – Civil Liability Act 2002 – failure to take reasonable precautions – apprentice butcher slipped on sausage mince left on floor of meat room
NEGLIGENCE – contributory negligence – part of apprentice’s job, along with everyone else in meat room, to clean up spills – 10% deduction for contributory negligence
DAMAGES – deduction pursuant to s151Z Workers Compensation Act 1987
INSURANCE – exclusion clause – grammatical meaning of clause – legal meaning of clause – examination of text, context and purpose - application of legal meaning to facts – ambiguity and contra proferentem
Legislation Cited: Apprenticeship and Traineeship Act 2001 (NSW)
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189
Darlington Futures Limited v Delco Australia Pty Limited [1986] HCA 82; (1986) 161 CLR 500
Mamo v Surace [2014] NSWCA 58; (2014) 86 NSWLR 275
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2007] NSWSC 15
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Wilkie v Gordian Runoff Limited [2005] HCA 17 at [16]; (2005) 221 CLR 522
Zhang v ROC Services (NSW) Pty Ltd [2016] NSWCA 370; (2016) 93 NSWLR 561
Texts Cited: Cambridge Grammar of English, Cambridge University Press 2006
Macquarie Dictionary
The Laws of Australia, Thomson Reuters, at 22.1.2440-22.1.2510
Category: Principal judgment
Parties: Mathew Philip Paul v Ashcroft Supa IGA Orange Pty Limited
Representation:
Counsel:
P Kirby (Plaintiff)
D Lloyd (Defendant, Cross-Claimant)
R Cavanagh SC (Cross-Defendant)
Solicitors:
Baldock Stacy & Niven (Plaintiff)
Toby Tancred Solicitor (Defendant, Cross-Claimant)
Wotton & Kearney Lawyers (Cross-Defendant)

File Number(s): 2015/292258

Judgment

Background

On 10 October 2012 the plaintiff was working as an apprentice butcher in the meat room at the defendant’s supermarket. He slipped on sausage mince on the floor and struck his back, suffering a serious injury. At the time the plaintiff was employed by Skillset Limited…

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.

Keep reading for free

Create a free CaseChat account to read Paul v Ashcroft Supa IGA Orange Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWDC 101
Decision Date: 05 April 2019

CaseChat Overview and Summary

The case of Paul v Ashcroft Supa IGA Orange Pty Ltd involved a claim for damages by an apprentice butcher who slipped on sausage mince left on the floor of the meat room, resulting in serious injuries. The defendant, the supermarket employer, was found liable for negligence due to a failure to take reasonable precautions to ensure a safe working environment. The court also considered the issue of contributory negligence, determining that the apprentice was 10% responsible for the accident as it was part of his job, along with others, to clean up spills in the meat room. The court further addressed the deduction of damages pursuant to section 151Z of the Workers Compensation Act 1987. Finally, the case examined the applicability of an exclusion clause within an insurance policy, determining its legal meaning through an analysis of the text, context, and purpose, and applying the contra proferentem principle to resolve any ambiguity.

The primary legal issues in this case were whether the defendant breached its duty of care by failing to maintain a safe workplace, and if so, what the extent of the defendant’s liability was given the contributory negligence of the plaintiff. The court had to interpret the exclusion clause in the insurance policy to determine if it excluded coverage for the claim. The court concluded that the defendant was indeed negligent and that the exclusion clause did not apply to the facts of this case. The court awarded damages to the plaintiff and also considered the statutory deduction for the contributory negligence.

The court found that the defendant was liable for negligence due to the unsafe conditions in the meat room. The court upheld the 10% deduction for the plaintiff’s contributory negligence, acknowledging that cleaning up spills was part of the plaintiff’s job responsibilities. The court also ruled that the exclusion clause in the insurance policy did not absolve the defendant of liability, as it was ambiguous and should be construed against the drafter, in accordance with the contra proferentem principle. The court awarded the plaintiff $578,689.11 in damages, reduced by the statutory deduction for the plaintiff's contributory negligence. The court ordered the defendant to pay the plaintiff’s costs and also addressed the cross-claim, awarding similar relief to the cross-claimant.

The final orders of the court included a judgment for the plaintiff against the defendant for $578,689.11, with the defendant ordered to pay the plaintiff’s costs. The court also granted leave for either party to seek a different costs order within seven days if necessary. The court ruled on the cross-claim in a similar manner, ordering the defendant to pay the cross-claimant’s costs on an indemnity basis and also granting leave for a review of the costs order.

Orders

Orders of the court

On the plaintiff’s claim:

(1) Judgment for the plaintiff against the defendant for $578,689.11.

(2) Order the defendant to pay the plaintiff’s costs.

(3) Grant leave to approach my Associate within 7 days if either party seeks a different costs order.

On the cross-claim:

(1) Judgment for the cross-claimant against the cross-defendant for $578,689.11.

(2) Judgment for the cross-claimant against the cross-defendant for the costs which the defendant has been ordered to pay to the plaintiff, such costs to be as agreed or assessed between the plaintiff and the defendant.

(3) Order the cross-defendant to pay the cross-claimant’s costs of the cross-claim on an indemnity basis.

(4) Grant leave to approach my associate within 7 days if either party seeks a different costs order.

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:	Paul v Ashcroft Supa IGA Orange Pty Ltd [2019] NSWDC 101
Hearing dates:	26 and 27 March 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	On the plaintiff’s claim: (1) Judgment for the plaintiff against the defendant for $578,689.11. (2) Order the defendant to pay the plaintiff’s costs. (3) Grant leave to approach my Associate within 7 days if either party seeks a different costs order. On the cross-claim: (1) Judgment for the cross-claimant against the cross-defendant for $578,689.11. (2) Judgment for the cross-claimant against the cross-defendant for the costs which the defendant has been ordered to pay to the plaintiff, such costs to be as agreed or assessed between the plaintiff and the defendant. (3) Order the cross-defendant to pay the cross-claimant’s costs of the cross-claim on an indemnity basis. (4) Grant leave to approach my associate within 7 days if either party seeks a different costs order.
Catchwords:	NEGLIGENCE – Civil Liability Act 2002 – failure to take reasonable precautions – apprentice butcher slipped on sausage mince left on floor of meat room NEGLIGENCE – contributory negligence – part of apprentice’s job, along with everyone else in meat room, to clean up spills – 10% deduction for contributory negligence DAMAGES – deduction pursuant to s151Z Workers Compensation Act 1987 INSURANCE – exclusion clause – grammatical meaning of clause – legal meaning of clause – examination of text, context and purpose - application of legal meaning to facts – ambiguity and contra proferentem
Legislation Cited:	Apprenticeship and Traineeship Act 2001 (NSW) Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189 Darlington Futures Limited v Delco Australia Pty Limited [1986] HCA 82; (1986) 161 CLR 500 Mamo v Surace [2014] NSWCA 58; (2014) 86 NSWLR 275 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2007] NSWSC 15 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Wilkie v Gordian Runoff Limited [2005] HCA 17 at [16]; (2005) 221 CLR 522 Zhang v ROC Services (NSW) Pty Ltd [2016] NSWCA 370; (2016) 93 NSWLR 561
Texts Cited:	Cambridge Grammar of English, Cambridge University Press 2006 Macquarie Dictionary The Laws of Australia, Thomson Reuters, at 22.1.2440-22.1.2510
Category:	Principal judgment
Parties:	Mathew Philip Paul v Ashcroft Supa IGA Orange Pty Limited
Representation:	Counsel: P Kirby (Plaintiff) D Lloyd (Defendant, Cross-Claimant) R Cavanagh SC (Cross-Defendant) Solicitors: Baldock Stacy & Niven (Plaintiff) Toby Tancred Solicitor (Defendant, Cross-Claimant) Wotton & Kearney Lawyers (Cross-Defendant)
File Number(s):	2015/292258