Seng v P and M Quality Smallgoods Pty Ltd - [2011] NSWDC 175

District Court

New South Wales

Medium Neutral Citation: Seng v P & M Quality Smallgoods Pty Ltd & Anor [2011] NSWDC 175
Hearing dates: 11, 12, 13 April, 27 July 2011, and subsequent written submissions
Decision date: 18 November 2011
Jurisdiction: Civil
Before: Levy SC DCJ
Decision:
See paragraph [229] of the judgment for orders.

Catchwords: TORTS - workplace injury -injured worker struck from behind by a heavily laden meat trolley pushed by another employee in a sausage factory - whether injury due to negligence of the defendants - whether apportionment of employer's contribution required pursuant to s 151Z(2) of the Workers' Compensation Act 1987; DAMAGES - assessment of claimed heads of damages
Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 5E, s 5Q
Evidence Act 1995, s 60
Uniform Civil Procedure Rules 2005, Sch 7 cl 5(c)
Workplace Injury Management Act 1998
Cases Cited: Browne v Dunn (1893) 6 R 67
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Dib Group Pty Ltd v Cole [2009] NSWCA 210
Galea v Bagtrans Pty Limited [2010] NSWCA 350
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Vairy v Wyong Shire Council [2005] 223 CLR 442
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Category: Principal judgment
Parties: Leap Seng (Plaintiff)
P & M Quality Smallgoods Pty Limited (First defendant)
The Homebush Unit Trust (Second defendant)
Representation: Mr K Andrews (Plaintiff)
Ms T Berberian (Defendant)
NSW Compensation Lawyers (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s): 2009/336435

Judgment

Table of Contents

Nature of case

[1] - [10]

Issues

[11] - [12]

Summary of findings

[13]

Assessed heads of damage

[14]

Evidence overview

[15] - [17]

Credit

[18] - [21]

Facts

[22] - [36]

Issue 1 - The negligence issue

[37] - [87]

Issue 2 - The s 151Z(2) issue

[88] - [99]

Issue 3 - Damages issues

[100] - [160]

Issue 4 - Assessment of damages

[161] - [162]

(a) Non-economic loss

[163] - [168]

(b) Past economic loss

[169] - [186]

(c) Future economic loss

[187] - [199]

(d) Past loss of superannuation

[200] - [201]

(e) Future loss of superannuation

[202] - [203]

(f) Past domestic assistance

[204] - [213]

(g) Future domestic assistance

[214] - [221]

(h) Future out-of-pocket expenses

[222] - [224]

(i) Past out-of-pocket expenses

[225]

Disposition

[227]

Costs

[228]

Orders

[229]

Nature of case

The plaintiff, Leap Seng, initially brought these proceedings against the first defendant, P & M Quality Smallgoods Pty Ltd, trading as Primo Smallgoods ["Primo"], and against the second defendant, the Homebush Unit Trust ["the Trust"], and a number of other defendants, being a selection of 4 of the 45 companies that I shall for convenience refer to as the Kaybron group of companies. The plaintiff…

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: [2011] NSWDC 175
Decision Date: 18 November 2011

CaseChat Overview and Summary

Seng was employed by P and M Quality Smallgoods Pty Ltd, a sausage manufacturer. During the course of his employment, Seng was injured when he was struck from behind by a heavily laden meat trolley pushed by a fellow employee. Seng brought a claim against P and M Quality Smallgoods Pty Ltd for damages under the common law of negligence. The defendants denied liability, claiming that the incident was an accident for which they could not be held liable and that any damages should be assessed in accordance with the Workers' Compensation Act 1987. The case was heard in the Supreme Court of New South Wales.

The primary legal issues were whether the defendants were negligent in relation to Seng's injuries and, if so, whether apportionment of employer's contribution was required pursuant to s 151Z(2) of the Workers' Compensation Act 1987. The court also needed to determine the appropriate assessment of Seng's claimed heads of damages. The defendants argued that the incident was unforeseeable and that they had taken reasonable steps to prevent accidents in the workplace. They also argued that any damages should be assessed under the Workers' Compensation Act 1987, rather than under the common law of negligence.

The court found that the defendants were negligent in relation to Seng's injuries. The court held that the defendants had a duty of care to provide a safe workplace and to take reasonable steps to prevent accidents. The court found that the defendants had failed to provide adequate training to their employees and had not implemented adequate safety measures to prevent accidents involving meat trolleys. The court also held that apportionment of employer's contribution was not required pursuant to s 151Z(2) of the Workers' Compensation Act 1987, as the defendants' negligence was not a result of any failure to comply with the Act. Finally, the court assessed Seng's claimed heads of damages and awarded him compensation for his injuries.

The court ordered that the defendants pay Seng damages for his injuries, including compensation for pain and suffering, loss of earnings, and medical expenses. The court also ordered that the defendants pay costs of the proceedings.

Orders

Orders of the court

See paragraph [229] of the judgment for orders.

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:	Seng v P & M Quality Smallgoods Pty Ltd & Anor [2011] NSWDC 175
Hearing dates:	11, 12, 13 April, 27 July 2011, and subsequent written submissions
Decision date:	18 November 2011
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	See paragraph [229] of the judgment for orders.
Catchwords:	TORTS - workplace injury -injured worker struck from behind by a heavily laden meat trolley pushed by another employee in a sausage factory - whether injury due to negligence of the defendants - whether apportionment of employer's contribution required pursuant to s 151Z(2) of the Workers' Compensation Act 1987; DAMAGES - assessment of claimed heads of damages
Legislation Cited:	Civil Liability Act 2002, s 5B, s 5D, s 5E, s 5Q Evidence Act 1995, s 60 Uniform Civil Procedure Rules 2005, Sch 7 cl 5(c) Workplace Injury Management Act 1998
Cases Cited:	Browne v Dunn (1893) 6 R 67 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Dib Group Pty Ltd v Cole [2009] NSWCA 210 Galea v Bagtrans Pty Limited [2010] NSWCA 350 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Vairy v Wyong Shire Council [2005] 223 CLR 442 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Leap Seng (Plaintiff) P & M Quality Smallgoods Pty Limited (First defendant) The Homebush Unit Trust (Second defendant)
Representation:	Mr K Andrews (Plaintiff) Ms T Berberian (Defendant) NSW Compensation Lawyers (Plaintiff) HWL Ebsworth (Defendant)
File Number(s):	2009/336435

Nature of case	[1] - [10]
Issues	[11] - [12]
Summary of findings	[13]
Assessed heads of damage	[14]
Evidence overview	[15] - [17]
Credit	[18] - [21]
Facts	[22] - [36]
Issue 1 - The negligence issue	[37] - [87]
Issue 2 - The s 151Z(2) issue	[88] - [99]
Issue 3 - Damages issues	[100] - [160]
Issue 4 - Assessment of damages	[161] - [162]
(a) Non-economic loss	[163] - [168]
(b) Past economic loss	[169] - [186]
(c) Future economic loss	[187] - [199]
(d) Past loss of superannuation	[200] - [201]
(e) Future loss of superannuation	[202] - [203]
(f) Past domestic assistance	[204] - [213]
(g) Future domestic assistance	[214] - [221]
(h) Future out-of-pocket expenses	[222] - [224]
(i) Past out-of-pocket expenses	[225]
Disposition	[227]
Costs	[228]
Orders	[229]