Pioneer Construction Material Pty Ltd v Millsom - [2002] NSWCA 258

CITATION: Pioneer Construction Material Pty Ltd v Geoffrey Thomas Millsom [2002] NSWCA 258 revised - 28/08/2002

FILE NUMBER(S): CA 40106/02

HEARING DATE(S): 07/08/2002

JUDGMENT DATE:
28 August 2002

PARTIES :

Pioneer Construction Material Pty Ltd v Geoffrey Thomas Millsom

JUDGMENT OF: Handley JA at 1; Foster AJA at 18; McClellan J at 48

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 46/2000

LOWER COURT
JUDICIAL OFFICER : Delaney DCJ

COUNSEL: Mr J Maconachie QC with J. Burn - Appellant
Dr A. Morrison SC with J. Henness - Respondent

SOLICITORS: P.W. Turk & Associates - Appellant
Caldwell Martin & Cox - Respondent

CATCHWORDS: Damages for negligence in respect of employment - any evidence that the appellant's failure or omission to provide counselling for the worker or materially contributed to his psychological injury.

CASES CITED:
State of New South Wales v Seedsman (2000 NSWCA 119)
Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679
Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81, 87
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640, 684, 694
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 725
Hampton Court Limited v Crooks (1957) 97 CLR 367
Banbury v Bank of Montreal [1918] AC 626
Suttor v Gundowda Pty Limited (1950) 81 CLR 418
O'Brien v Komesaroff (1982) 150 CLR 310
Chappel v Hart (1998) 195 CLR 323
Coulton v Holcombe (1986) 162 CLR 1
Tyson v Brisbane Market Freight Brokers Pty Ltd (1994) 120 ALR

DECISION: 1. Leave to the appellant to amend its notice of appeal as sought; 2. Appeal allowed with costs; 3. Judgment of the plaintiff in the District Court for $114,131.05 and costs set aside; 4. In lieu thereof judgment entered for the defendant with costs; 5. Respondent to have a certificate under the Suitors Fund Act.

CA 40106/02
DC 46/00

HANDLEY JA
FOSTER AJA
McCLELLAN J

WEDNESDAY, 28 AUGUST, 2002

PIONEER CONSTRUCTION MATERIALS PTY LIMITED v MILLSOM

Judgment

1 HANDLEY JA: In this appeal I have had the benefit of reading the reasons for judgment of Foster AJA and McClellan J in draft form. The facts and the history of the proceedings have already been summarised by Foster AJA. The issues for this Court are whether there was any evidence that the appellant’s “failure” or omission to provide counselling for the worker caused or materially contributed to his psychological injury, and whether, in the light of the conduct of the trial, that question is open to the appellant in this appeal at all.

2 The worker’s claim did not involve the question whether some act or event had brought about or materially contributed to some other act or event or some condition. The enquiry concerns an omission, the lack of appropriate counselling. The question was not whether this omission actually caused or materially contributed to the worker’s psychological injury because clearly it did not. This was caused by his exposure to psychologically distressing…

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: [2002] NSWCA 258
Decision Date: 28 August 2002

CaseChat Overview and Summary

Pioneer Construction Material Pty Ltd appealed to the New South Wales Court of Appeal against a judgment of the District Court awarding damages to the respondent, Millsom, for negligence in respect of his employment. The dispute concerned whether the appellant's failure or omission to provide counselling for Millsom materially contributed to his psychological injury.

The Court of Appeal was required to determine whether the District Court judge erred in finding that the appellant's conduct caused or materially contributed to the respondent's psychological injury. Specifically, the appeal raised questions about the sufficiency of the evidence to establish causation and whether the appellant owed a duty of care to provide counselling to its employees in the circumstances of the case.

The Court of Appeal found that the evidence did not establish that the appellant's failure to provide counselling materially contributed to the respondent's psychological injury. The judges reasoned that while an employer may owe a duty of care to its employees regarding their mental health, the specific facts of this case did not demonstrate a breach of that duty or a causal link between the alleged breach and the injury suffered. The court concluded that the District Court judge had made an error in finding causation based on the evidence presented.

Consequently, the Court of Appeal allowed the appeal, set aside the District Court's judgment for the respondent, and entered judgment for the appellant. The respondent was ordered to pay the appellant's costs, and the respondent was granted a certificate under the Suitors Fund Act.

Orders

Orders of the court

1. Leave to the appellant to amend its notice of appeal as sought; 2. Appeal allowed with costs; 3. Judgment of the plaintiff in the District Court for $114,131.05 and costs set aside; 4. In lieu thereof judgment entered for the defendant with costs; 5. Respondent to have a certificate under the Suitors Fund Act.

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.

CITATION:	Pioneer Construction Material Pty Ltd v Geoffrey Thomas Millsom [2002] NSWCA 258 revised - 28/08/2002
FILE NUMBER(S):	CA 40106/02
HEARING DATE(S):	07/08/2002
JUDGMENT DATE:	28 August 2002
PARTIES :	Pioneer Construction Material Pty Ltd v Geoffrey Thomas Millsom
JUDGMENT OF:	Handley JA at 1; Foster AJA at 18; McClellan J at 48

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 46/2000
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	Mr J Maconachie QC with J. Burn - Appellant Dr A. Morrison SC with J. Henness - Respondent
SOLICITORS:	P.W. Turk & Associates - Appellant Caldwell Martin & Cox - Respondent
CATCHWORDS:	Damages for negligence in respect of employment - any evidence that the appellant's failure or omission to provide counselling for the worker or materially contributed to his psychological injury.
CASES CITED:	State of New South Wales v Seedsman (2000 NSWCA 119) Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679 Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81, 87 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640, 684, 694 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 725 Hampton Court Limited v Crooks (1957) 97 CLR 367 Banbury v Bank of Montreal [1918] AC 626 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 O'Brien v Komesaroff (1982) 150 CLR 310 Chappel v Hart (1998) 195 CLR 323 Coulton v Holcombe (1986) 162 CLR 1 Tyson v Brisbane Market Freight Brokers Pty Ltd (1994) 120 ALR
DECISION:	1. Leave to the appellant to amend its notice of appeal as sought; 2. Appeal allowed with costs; 3. Judgment of the plaintiff in the District Court for $114,131.05 and costs set aside; 4. In lieu thereof judgment entered for the defendant with costs; 5. Respondent to have a certificate under the Suitors Fund Act.