Tabvena v Oag - [2002] NSWCA 61

CITATION: Tabvena v Oag [2002] NSWCA 61 revised - 25/09/2002

FILE NUMBER(S): CA 40430 of 2001

HEARING DATE(S): 01/03/02

JUDGMENT DATE:
23 August 2002

PARTIES :

Tabvena Pty Limited T/as Wallscapes
v
Grant Oag

JUDGMENT OF: Meagher JA at 1; Powell JA at 12; Mathews AJA at 13

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : CL 1398/99

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

COUNSEL: A: Mr Lachlan Gyles
R: Mr Peter Semmler QC with Mr Brad Slowgrove

SOLICITORS: A: Hunt & Hunt
R: Albert A Macri Partners

CATCHWORDS: Section 151B(1)(b) Workers' Compensation Act 1987 - apportionment of contributory negligence - appeal allowed.

LEGISLATION CITED: Workers' Compensation Act 1987
Law Reform (Miscellaneous Provisions) Act 1965

CASES CITED:
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492
Liftronic Pty Ltd v Unver (2001) 75 ALJR 867
Zampetides v State of NSW (unreported, 23/08/00 Malpass M)

DECISION: 1. Appeal allowed; 2. Judgment below set aside; 3. In lieu thereof, verdict for the plaintiff in the amount of $208,268.48; 4. 4. The appellant to pay ¾ of the Respondent's costs of the Appeal, and the Respondent to pay ¼ of the Appellant's costs of the Appeal, with the Respondent to have a certificate from the Suitors Fund Act in respect of the latter.

CA 40430 of 2001
CL 1398 of 1999

MEAGHER JA
POWELL JA
MATHEWS AJA
Tuesday, 24 September 2002

TABVENA PTY LIMITED T/AS WALLSCAPES V GRANT OAG

Facts
The appellant, Tabvena Pty Limited, was found guilty of negligence for failing to provide suitable machinery, as well as a suitable work area for the respondent, Mr Oag, who was the operator of a machine called an “excavator”. On the day in question, while he was engaged in moving rubble from a stockpile and dumping it at another point, the machine fell over and injured him. The trial judge found that the respondent was contributorily negligent (40%), but awarded him $276 000 in damages.

On appeal the following issues arose: (i) whether the trial judge erred in his conclusion that liability should be apportioned as to 40% to the respondent, and 60% to the appellant; (ii) whether that the amount of $169 328.81 should have been deducted from the respondent’s verdict.

Held: Per Meagher JA (Powell JA & Matthews AJA agreeing)
(i) In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492, the High Court of Australia delivered a judgment which made it quite clear that a finding of the proportions of contributory negligence (either by a trial judge or by a jury) attracts a special sacrosanctity; and in Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 the High Court was constrained to repeat that Podrebersek’s case meant what it said. The trial judge’s proportions could therefore not be disturbed.
(ii) In Zampetides v State of New South Wales (unreported, 23 August 2000), Malpass M), it was held that the provisions of the Workers’ Compensation Act 1987, are starkly unambiguous; the…

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.

Continue reading Tabvena v Oag

Details

AGLC: Tabvena v Oag [2002] NSWCA 61
Case: [2002] NSWCA 61
Decision Date: 23 August 2002

CaseChat Overview and Summary

The appeal in *Tabvena v Oag* concerned the apportionment of contributory negligence under section 151B(1)(b) of the *Workers' Compensation Act 1987* (NSW). The case was heard in the Court of Appeal of New South Wales by Meagher and Powell JJA and Mathews AJA.

The central legal issue before the Court of Appeal was whether the primary judge had erred in their assessment of the plaintiff's contributory negligence. Specifically, the court was required to determine if the apportionment of blame between the plaintiff and the defendant was appropriate in light of the evidence presented.

The Court of Appeal allowed the appeal, setting aside the judgment of the court below. In its place, the court entered a verdict for the plaintiff in the amount of $208,268.48. The costs order reflected a modification of the original apportionment, with the appellant to pay three-quarters of the respondent's costs of the appeal, and the respondent to pay one-quarter of the appellant's costs, with the respondent to receive a certificate from the Suitors Fund Act in respect of their portion of the costs.

Orders

Orders of the court

1. Appeal allowed; 2. Judgment below set aside; 3. In lieu thereof, verdict for the plaintiff in the amount of $208,268.48; 4. 4. The appellant to pay ¾ of the Respondent's costs of the Appeal, and the Respondent to pay ¼ of the Appellant's costs of the Appeal, with the Respondent to have a certificate from the Suitors Fund Act in respect of the latter.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Tabvena v Oag [2002] NSWCA 61 revised - 25/09/2002
FILE NUMBER(S):	CA 40430 of 2001
HEARING DATE(S):	01/03/02
JUDGMENT DATE:	23 August 2002
PARTIES :	Tabvena Pty Limited T/as Wallscapes v Grant Oag
JUDGMENT OF:	Meagher JA at 1; Powell JA at 12; Mathews AJA at 13

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	CL 1398/99
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

COUNSEL:	A: Mr Lachlan Gyles R: Mr Peter Semmler QC with Mr Brad Slowgrove
SOLICITORS:	A: Hunt & Hunt R: Albert A Macri Partners
CATCHWORDS:	Section 151B(1)(b) Workers' Compensation Act 1987 - apportionment of contributory negligence - appeal allowed.
LEGISLATION CITED:	Workers' Compensation Act 1987 Law Reform (Miscellaneous Provisions) Act 1965
CASES CITED:	Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 Zampetides v State of NSW (unreported, 23/08/00 Malpass M)
DECISION:	1. Appeal allowed; 2. Judgment below set aside; 3. In lieu thereof, verdict for the plaintiff in the amount of $208,268.48; 4. 4. The appellant to pay ¾ of the Respondent's costs of the Appeal, and the Respondent to pay ¼ of the Appellant's costs of the Appeal, with the Respondent to have a certificate from the Suitors Fund Act in respect of the latter.