New South Wales
Court of Appeal
CITATION: TARABAY v LEITE [2008] NSWCA 259 HEARING DATE(S): 21 August 2008
JUDGMENT DATE:
23 October 2008JUDGMENT OF: Allsop P at 1; Basten JA at 2; Bell JA at 79 DECISION: (1) Appeal and cross-appeal each allowed in part.
(2) Judgment given in the District Court on 24 September 2007 set aside and in lieu thereof make the following orders:
(a) give judgment for the plaintiff in the amount of $209,170;
(b) order the defendants to pay the plaintiff’s costs of the trial.(3) Order the appellants to pay two-thirds of the respondent’s costs in this Court.
(4) Grant the appellants a certificate under the Suitors’ Fund Act 1951 (NSW), with respect to the costs of the cross-appeal.
(5) Grant liberty to apply in accordance with the terms set out in [77] of the reasons for judgment.
CATCHWORDS: APPEALS – contingent finding on apportionment of liability – purpose of additional findings – status of contingent findings on appeal – whether Court of Appeal should reconsider apportionment and reach its own conclusion – principle of restraint - CONTRIBUTORY NEGLIGENCE – challenge to factual finding leading to conclusion of contributory negligence – whether plaintiff’s vision obscured by plywood – evidence in chief and cross-examination of plaintiff taken out of context - DAMAGES – domestic assistance – gratuitous attendant care services – threshold for damages – commercially provided care services – whether plaintiff required future domestic assistance – reliance on medical reports – Civil Liability Act 2002 (NSW) s 15(3) - DAMAGES – recovery against third party (head contractor), not against employer – adjustment of award on account of culpability of employer – calculation of reduction of overall liability of head contractor – apportionment of liability between employer and head contractor as joint tortfeasors – whether employer’s responsibility greater than head contractor’s responsibility – where employer has limited control over building site – where head contractor responsible for maintaining reasonably safe site – Workers Compensation Act 1987 (NSW) s 151Z(2) - WORKERS COMPENSATION – recovery against third party (head contractor), not against employer – adjustment of award on account of culpability of employer – calculation of reduction of overall liability of head contractor – Workers Compensation Act 1987 (NSW) s 151Z(2) - WORDS & PHRASES – “apportionment” – “gratuitous attendant care services” – “principle of restraint” LEGISLATION CITED: Civil Liability Act 2002 (NSW), s 15
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Workers Compensation Act 1987 (NSW), s 151Z; Part 5, Div 3CATEGORY: Principal judgment CASES CITED: AV Jennings Construction Pty Ltd v Maumill (1956-1957) 30 ALJ 100
Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 CLR 635
Costa v The Public Trustee of New South Wales [2008] NSWCA 223
Deputy Commissioner of Taxation v Meredith (No. 2)[2008] NSWCA 133
Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23; (2008) Aust Torts Reports 81-937
Georgitsis v Lend Lease Interiors Pty Ltd (1989) 17 NSWLR 106
Harrison v Melhem [2008]…
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- AGLC
- Tarabay v Leite [2008] NSWCA 259
- Case
- [2008] NSWCA 259
- Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between the plaintiff, Mr Tarabay, and the defendant, Mr Leite, arising from injuries sustained by Mr Tarabay while working on a construction site. Mr Tarabay, an employee of a subcontractor, was injured when a piece of plywood fell on him. He sued Mr Leite, the head contractor, for negligence. The District Court had found Mr Leite liable but also found Mr Tarabay contributorily negligent. The District Court also made a contingent finding on the apportionment of liability between Mr Leite and Mr Tarabay's employer, which was relevant to the operation of s 151Z(2) of the *Workers Compensation Act 1987* (NSW).
The Court of Appeal was required to determine several legal issues. These included whether the District Court erred in its finding of contributory negligence, specifically regarding the plaintiff's vision being obscured by plywood. The court also had to consider the status of the contingent finding on apportionment of liability and whether it should reconsider this apportionment itself. Furthermore, the court was asked to determine issues relating to damages, including the threshold for recovery of gratuitous attendant care services and the requirement for future domestic assistance, as well as the calculation of the reduction of the head contractor's liability under s 151Z(2) of the *Workers Compensation Act 1987* (NSW), taking into account the employer's culpability.
The Court of Appeal applied the principle of restraint, generally deferring to the trial judge's factual findings unless there was a clear error. However, the court found that the District Court had taken parts of the plaintiff's evidence out of context when concluding contributory negligence. Regarding the apportionment of liability, the court determined that it was appropriate to reconsider the contingent finding, noting that the head contractor had a greater responsibility for maintaining a safe site than the employer, who had limited control. The court also addressed the damages claims, applying the relevant provisions of the *Civil Liability Act 2002* (NSW) and the *Workers Compensation Act 1987* (NSW).
The appeal and cross-appeal were each allowed in part. The judgment of the District Court was set aside, and new orders were to be made.
The Court of Appeal was required to determine several legal issues. These included whether the District Court erred in its finding of contributory negligence, specifically regarding the plaintiff's vision being obscured by plywood. The court also had to consider the status of the contingent finding on apportionment of liability and whether it should reconsider this apportionment itself. Furthermore, the court was asked to determine issues relating to damages, including the threshold for recovery of gratuitous attendant care services and the requirement for future domestic assistance, as well as the calculation of the reduction of the head contractor's liability under s 151Z(2) of the *Workers Compensation Act 1987* (NSW), taking into account the employer's culpability.
The Court of Appeal applied the principle of restraint, generally deferring to the trial judge's factual findings unless there was a clear error. However, the court found that the District Court had taken parts of the plaintiff's evidence out of context when concluding contributory negligence. Regarding the apportionment of liability, the court determined that it was appropriate to reconsider the contingent finding, noting that the head contractor had a greater responsibility for maintaining a safe site than the employer, who had limited control. The court also addressed the damages claims, applying the relevant provisions of the *Civil Liability Act 2002* (NSW) and the *Workers Compensation Act 1987* (NSW).
The appeal and cross-appeal were each allowed in part. The judgment of the District Court was set aside, and new orders were to be made.
Orders
Orders of the court
(1) Appeal and cross-appeal each allowed in part. (2) Judgment given in the District Court on 24 September 2007 set aside and in lieu thereof make the following orders:
Background
Background to the litigation
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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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