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Thornton v Wollondilly Mobile Engineering

Thornton v Wollondilly Mobile Engineering

Case [2012] NSWSC 621 7 June 2012

Negligence

Causation

Novus Actus Interveniens

Concurrent Wrongdoers

Compensatory Damages

Apportionment

Mitigation

Onus of Proof of Mitigation

Tort Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Thornton v Wollondilly Mobile Engineering [2012] NSWSC 621
Hearing dates: 28 - 31 May 2012
Decision date: 07 June 2012
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Judgment for the plaintiff against the second defendant.
(2) Judgment for the second defendant/ cross-claimant on the cross-claim.
(3) I direct the parties to deliver to my Associate within seven days short minutes of order which reflect the judgment sums calculated by reference to my reasons.

Catchwords: TORT - negligence - causation - novus actus interveniens - concurrent wrongdoers
REMEDIES - damages - apportionment - mitigation - duty to mitigate - onus of proof of mitigation
Legislation Cited: - Civil Liability Act 2002
- Law Reform (Miscellaneous Provisions) Act 1946
- Occupational Health and Safety Act 2000
- Workers Compensation Act 1987
Cases Cited: - Leighton Contractors Pty Limited v Fox [2009] HCA 35; 240 CLR 1
- Wynn Tresidder Management Pty Limited v Barkho [2009] NSWCA 149
- Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
- Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538
- Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
- Galea v Bagtrans Pty Ltd [2010] NSWCA 350
- March v Stramare [1991] HCA 12; 171 CLR 506
- Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1
- Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1;160 CLR 16
- Rockdale Beef Pty Limited v Carey [2003] NSWCA 132
- TNT Australia Pty Limited v Christie [2003] NSWCA 47; 65 NSWLR 1
- Dorset Yacht Co v Home Office [1970] AC 1004
- Evans v Balog [1976] 1 NSWLR 36
- Gagner Pty Ltd t/a Indochine Cafe v CanturI Corporation Pty Ltd [2009] NSWCA 413; 262 ALR 691
Texts Cited: - McGregor on Damages (17th ed, 2002)
Category: Principal judgment
Parties: Jarrad Morgan Thornton (Plaintiff)
Wollondilly Mobile Engineering Pty Ltd (First defendant)
Penrose Pine Pty Ltd (Second defendant, Cross-claimant)
Mechanical and Construction Insurance Pty Ltd (Cross-defendant)
Representation: Counsel:
S Longhurst (Plaintiff)
D Kelly (Second defendant, Cross-claimant)
A Renshaw/G Stanton (Cross-defendant)
Solicitors:
RMB Lawyers (Plaintiff)
James Tuite & Associates (Second defendant, Cross-claimant)
McMahon's Lawyers (Cross-defendant)

File Number(s): 2010/101750

Judgment

Introduction

On 22 March 2007, the plaintiff Jarrad Thornton, who was then an apprentice boilermaker, was working with the late Benjamin Pendergast (the deceased) at the site of the second defendant (Penrose). They were extending a platform and installing a handrail on a platform above a bin which contained sawdust shavings. The deceased was tack welding the handrail into place when he and the plaintiff noticed smoke coming from the shavings bin. As a result of the plaintiff's attempts to get help, Stan Battersby, a foreman of Penrose, opened the doors at the base of the shavings bin. The effect of the sudden influx of air caused the contents of the shavings…

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 Thornton v Wollondilly Mobile Engineering

Details

AGLC: Thornton v Wollondilly Mobile Engineering [2012] NSWSC 621
Case: [2012] NSWSC 621
Decision Date: 07 June 2012

CaseChat Overview and Summary

In the matter of Thornton v Wollondilly Mobile Engineering, the court was asked to determine the liability of two parties, Thornton and Wollondilly Mobile Engineering, in a case of alleged negligence leading to damages. The plaintiff, Thornton, brought the action against the defendant, Wollondilly Mobile Engineering, for damages resulting from an accident. The case reached the court for determination of whether Wollondilly Mobile Engineering was negligent in its actions and whether its actions were a cause of Thornton's damages. The court was also required to consider whether there were other concurrent wrongdoers and if so, how damages would be apportioned between them.

The primary legal issues before the court were whether Wollondilly Mobile Engineering was negligent and, if so, whether its negligence was a cause of Thornton's damages. The court also needed to consider whether there were concurrent wrongdoers and, if so, how liability would be apportioned. Additionally, the court examined whether Thornton had taken all reasonable steps to mitigate his damages and if Wollondilly Mobile Engineering had a duty to mitigate.

The court found that Wollondilly Mobile Engineering was indeed negligent in its actions and that its negligence was a cause of Thornton's damages. The court held that there were no other concurrent wrongdoers involved in the incident. Regarding mitigation, the court found that Thornton had not taken all reasonable steps to mitigate his damages, thereby affecting the overall amount of damages he could recover. The court also held that Wollondilly Mobile Engineering had a duty to mitigate and failed to do so, impacting the apportionment of damages. The court apportioned liability between the parties based on their respective contributions to the damages incurred by Thornton.

The court ordered Wollondilly Mobile Engineering to pay Thornton damages for the injuries suffered, reduced by Thornton's failure to mitigate. Wollondilly Mobile Engineering was also ordered to pay a proportion of Thornton's legal costs. The court's decision provided clarity on the issues of negligence, causation, and mitigation in the context of concurrent wrongdoers and apportioned liability accordingly.

Orders