Ryan v A F Concrete Pumping Pty Ltd - [2012] NSWSC 723

Supreme Court

New South Wales

Medium Neutral Citation: Ryan v A F Concrete Pumping Pty Ltd [2012] NSWSC 723
Hearing dates: 20/06/2012
Decision date: 29 June 2012
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The first defendant is to pay the first plaintiff the sum of $100,000 by way of interim payment pursuant to s 82 of the Civil Procedure Act 2005 within 14 days.
(2) Costs are reserved.

Catchwords: PROCEDURE - claim by first plaintiff for interim payment pursuant to s 82(3)(c) Civil Procedure Act 2005 - first plaintiff sustained injury in industrial accident - mild traumatic brain injury and other physical injury - Court satisfied that, if the matter goes to trial, the first plaintiff would obtain judgment for substantial damages against first defendant - order for interim payment made
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Australian Standard AS 2550.15 of 1994: Cranes - Safe use, Part 15: Concrete placing equipment
WorkCover Code of Practice - Pumping Concrete
Workers Compensation Act 1987
Cases Cited: Acko Dimkovski by his next friend Mita Dimkovska v Ken's Painting & Decorating Services Pty Ltd [1999] NSWSC 795
Forster v Hunter New England Area Health Service [2010] NSWCA 106
Matouk v Hungry Jacks [2009] NSWSC 1176
Category: Procedural and other rulings
Parties: Jeffrey Lawrence Ryan (First Plaintiff)
Reliance Pools International Pty Ltd (Second Plaintiff)
A F Concrete Pumping Pty Ltd (First Defendant)
GIO General Limited (Second Defendant)
Representation: RA Cavanagh SC with CJ Callaway (Plaintiffs)
A Parker (First Defendant)
N Polin (Second Defendant)
Gillis Delaney Lawyers (Plaintiffs)
Walker Hedges & Co (First Defendant)
Gadens Lawyers (Second Defendant)

File Number(s): 2010/408063

Judgment

HER HONOUR: By notice of motion filed 28 October 2011 the first plaintiff seeks, pursuant to s 82(1) of the Civil Procedure Act 2005, that the Court order that the first and second defendants make payment to the first plaintiff of part of the damages sought to be recovered by the first plaintiff in the proceedings.

The plaintiff is Jeffrey Lawrence Ryan ("Mr Ryan"). The second plaintiff is Reliance Pools International Pty Ltd ("Reliance Pools"). Mr Ryan was the director of Reliance Pools. The first defendant is A F Concrete Pumping Pty Ltd. The second defendant is GIO General Limited ("the defendants").

Reliance Pools had been engaged to construct a swimming pool on the roof of a seven storey construction site at Brighton-Le-Sands. It was only a small pool. The contract with the principal, Vecco Holdings, required that Vecco Holdings provide concrete pumpers to get the concrete up to level 7. Vecco Holdings arranged for the first defendant to supply the pump and pump the concrete to the seventh storey. C&J Concrete Sprayers Pty Ltd ("C&J Concrete") was engaged to assist with the construction of the pool. C&J Concrete supplied a second pump and was responsible for the concrete spraying. C&J Concrete has gone into liquidation. C&J Concrete's insurer is the second defendant. Both defendants deny liability.

Mr Ryan relied on his evidentiary statement dated 2 August…

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: [2012] NSWSC 723
Decision Date: 29 June 2012

CaseChat Overview and Summary

The parties involved in this case are Ryan and A F Concrete Pumping Pty Ltd. The dispute revolves around an industrial accident where Ryan sustained a mild traumatic brain injury and other physical injuries. Ryan sought an interim payment pursuant to section 82(3)(c) of the Civil Procedure Act 2005. The court was tasked with determining whether Ryan was entitled to an interim payment before the trial of the substantive claim. The central legal issue was whether the court could be satisfied that Ryan would obtain judgment for substantial damages against A F Concrete Pumping Pty Ltd if the matter proceeded to trial.

The court considered whether Ryan had demonstrated a strong likelihood of success at trial, which would entitle him to an interim payment. The court examined the evidence and the circumstances surrounding the accident and the injuries sustained. The court was satisfied that, if the matter went to trial, Ryan would likely obtain judgment for substantial damages against A F Concrete Pumping Pty Ltd. This satisfaction was based on the severity of Ryan's injuries and the clear evidence of the defendant's liability. Consequently, the court ordered an interim payment to Ryan.

The court's decision was grounded in the statutory provision of section 82(3)(c) of the Civil Procedure Act 2005, which allows for interim payments where the court is satisfied that the plaintiff will obtain judgment for substantial damages. The court concluded that Ryan's case met the criteria for an interim payment due to the substantial likelihood of success at trial. Therefore, the court ordered an interim payment to Ryan.

Orders