South 32 Ltd v Allfab Constructions Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

South 32 Ltd v Allfab Constructions Pty Ltd [2019] NSWCA 132

Hearing dates:

29 March 2019

Decision date:

11 June 2019

Before:

Leeming JA at [1];
Emmett AJA at [82];
Simpson AJA at [85]

Decision:

The appeal be dismissed, with costs.

Catchwords:

NEGLIGENCE – contribution between tortfeasors – plaintiff suffered injury in workplace – plaintiff brought proceedings against occupier and a contractor on site – proceedings between plaintiff and occupier compromised – occupier sought statutory contribution against contractor – whether primary judge failed to deal with way in which occupier had advanced its case – whether primary judge erred in (notional) assessment of contribution – appeal dismissed

Legislation Cited:

Civil Liability Act 2002 (NSW), Part 1A, ss 5B, 5D
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:

Leslie Corbett v South 32 Limited (No 2) [2018] NSWDC 232
Nominal Defendant v Dowedeit [2016] NSWCA 332
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Category:

Principal judgment

Parties:

South 32 Ltd (First appellant)
Illawarra Coal Holdings Pty Ltd (Second appellant)
Endeavour Coal Pty Ltd (Third appellant)
Allfab Constructions Pty Ltd (Respondent)

Representation:

Counsel:

 

G Watson SC and D Tang (Appellants)
R Cavanagh SC and D Talintyre (Respondent)

 

Solicitors:

  HWL Ebsworth lawyers (Appellants)
Yeldham Price O’Brien Lusk (Respondent)

File Number(s):

2018/256962

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2018] NSWDC 232

Date of Decision:

3 August 2018

Before:

P Taylor SC DCJ

File Number(s):

2016/348238

Judgment

1. LEEMING JA: This appeal turns on its own facts. It arises out of a workplace injury. The appellant occupiers accepted they were liable to the plaintiff prior to the commencement of the hearing. The appellants’ claim for statutory contribution against a maintenance contractor (Allfab Constructions Pty Ltd) was the only aspect of the proceedings which went to trial.

2. The main point in the appeal is whether the primary judge failed to determine the “principal case” put forward by the appellants. Consequently, in what follows, it will not be necessary to summarise all of the evidence adduced during a six day hearing, but it will be necessary to address in some detail the issues formulated at first instance and the way in which the trial was conducted.

Background

3. On 2 June 2015, Mr Leslie Corbett was injured in a workplace accident in the West Cliff coal preparation plant operated by the appellants. He was present when the hatch to the sump of a tank known as Tank 3-20C was opened, in the course of regular quarterly cleaning and maintenance. The tank should have been empty. In fact, it contained some 29,000 litres of slurry (water and magnetite). The picture below shows the hatch to the sump of the tank and the dump valve. The circular hatch is attached to the sump by two hinges and around…