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 1998Cases 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 158Category: 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…
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- Case
- [2011] NSWDC 175
- Decision Date
CaseChat Overview and Summary
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.