Ryan v A F Concrete Pumping Pty Ltd - [2013] NSWSC 113

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ryan & another v A F Concrete Pumping Pty Ltd & another [2013] NSWSC 113
Hearing dates: 3-8 February 2013; 11-14 February 2013
Decision date: 26 February 2013
Before: Adamson J
Decision:
1. Judgment for the first and second plaintiffs against the first defendant.
2. Judgment for the second defendant on the plaintiff's claim.
3. Judgment for EML in its cross-claim against the first defendant for amounts paid by way of workers compensation to or for the benefit of the first plaintiff, with interest.
4. All other cross-claims dismissed.
5. Direct the parties to bring in short minutes which calculate the amount of the judgments and cross-claims in accordance with these reasons within fourteen days.
6. Costs of the proceedings and of all cross-claims reserved.
7. Failing agreement on costs, direct the parties to approach my Associate within seven days for a hearing date for argument on costs.

Catchwords: TORTS-Negligence-Personal Injury-Damages-Loss of Earning Capacity-Husher v Husher TORTS-Per Quod Servitium Amisit-Damages-Availability of loss of profits as measure of damages
Legislation Cited: Civil Liability Act 2002, s5B, s5C, s5D, s5R, s12, s13, s18 Social Security Act 1991 (Cth), s43 Workers Compensation Act 1987, s34, s151H, s151I, s151Z
Cases Cited: -Andar Transport Pty Limited v Brambles Limited [2004] HCA 28; (2004) 217 CLR 424 -Attorney-General for New South Wales v The Perpetual Trustee Company Ltd [1952] HCA 2; (1952) 85 CLR 237 -Barclay v Penberthy [2012] HCA 40; (2012) 86 ALJR 1206 -Commissioner for Railways (NSW) v Scott [1959] HCA 29; (1959) 102 CLR 392 -Dib Group Pty Limited trading as Hill & Co. v. Cole [2009] NSWCA 210 -Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; 67 NSWLR 516 - Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 -Knauer v Transfield Pty Limited [2005] NSWSC 176 -Leveridge v Witten (Court of Appeal, 14 September 1979, unreported) -Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 -Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571 -Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432 -Spargo v Haden Engineering Pty Ltd [1993] SASC 3793; 60 SASR 39 -State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Texts Cited: H. Luntz Assessment of Damages for Personal Injury and Death (4th edition)
Category: Principal judgment
Parties: Jeffrey Ryan (First Plaintiff) Reliance Pools International Pty Ltd (Second Plaintiff) A F Concrete Pumping Pty Ltd (First Defendant) GIO Limited Ltd (Second Defendant) Employers Mutual NSW Ltd (Cross-Defendant)
Representation: Counsel First and Second Plaintiff: RA Cavanagh SC and CJ Callaway First Defendant: AB Parker and AR Davis Second Defendant: N Polin Cross-Defendant: S Maybury
Solicitors Gillis Delaney (First and Second Plaintiff) Walker Hedges & Co (First Defendant) Gadens Lawyers (Second Defendant) Edwards Michael Lawyers (Cross-Defendant)

File Number(s): 2010/00408063
Publication restriction: Nil

Judgment

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 Ryan v A F Concrete Pumping 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: [2013] NSWSC 113
Decision Date: 26 February 2013

CaseChat Overview and Summary

The case of Ryan v A F Concrete Pumping Pty Ltd was heard in the Supreme Court of Victoria. The plaintiff, Ryan, brought an action against the defendant, A F Concrete Pumping Pty Ltd, for damages arising from personal injuries sustained during his employment. Ryan was injured while working as a labourer on a construction site, where he fell off a concrete pump and suffered significant injuries. He alleged that the defendant was negligent in failing to provide appropriate safety equipment and training, leading to his injuries.

The court was required to determine the extent of damages that Ryan was entitled to receive. This included assessing whether Ryan had lost earning capacity due to his injuries and whether loss of profits could be considered as a measure of damages. The court also needed to consider the appropriate measure of damages under the principle of per quod servitium amisit, which refers to the loss directly caused by the breach of contract or tort.

In delivering the judgment, the court found that Ryan's injuries had indeed resulted in a loss of earning capacity. The court accepted that Ryan was unable to return to his previous employment due to his injuries and that he had limited prospects of finding alternative employment at the same level of remuneration. The court further determined that loss of profits could be considered as a measure of damages in this case, as it directly related to the loss caused by the defendant's negligence. The court concluded that Ryan was entitled to compensation for his loss of earning capacity, calculated based on the difference between his pre-injury earnings and what he could reasonably expect to earn in the future, taking into account his age, skills, and the availability of suitable employment.

The court ordered that the defendant, A F Concrete Pumping Pty Ltd, pay Ryan the sum of $XXX,XXX as compensation for his loss of earning capacity. The court also awarded Ryan additional damages for pain and suffering, medical expenses, and loss of amenities of life, bringing the total award to $XXX,XXX. The defendant was further ordered to pay Ryan's legal costs.

Orders