New South Wales
Court of Appeal
CITATION: Tolhurst v Cleary Bros (Bombo) Pty Ltd & Anor [2008] NSWCA 181 HEARING DATE(S): 24 and 30 April 2008
JUDGMENT DATE:
12 August 2008JUDGMENT OF: Beazley JA at 1; Giles JA at 26; Tobias JA at 145 DECISION: (1) Appeal allowed and cross-appeals dismissed; (2) Set aside Orders 1 and 2 made by the trial judge on 27 March 2007 and order in lieu: (a) Verdict and Judgment against the first defendant/first respondent (Cleary Bros (Bombo) Pty Limited) in an amount to be assessed; (b) Verdict and Judgment against the second defendant/second respondent (Endeavour Coal Pty Limited) in an amount to be assessed; (3) Remit the proceedings to the District Court for a new trial limited to the question of damages, including causation; (4) The first and second respondents are to pay the appellant's costs of the appeal and his costs of their respective cross-appeals. CATCHWORDS: Negligence - mine owner contracted out loading from stockpile - stockpile collapse injuring contractor's worker - use of unsafe method of loading - mine owner's duty of care owed to worker - effect of worker's knowledge that method was unsafe - subsequent injury - causation of worker's present condition - incorrect to ask if mine injury was defining event - whether should be new trial generally or only as to damages. CASES CITED: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419;
Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186;
Bankstown Foundary Pty Ltd v Braistina (1986) 160 CLR 301;
Brown's Valve Service Pty Ltd v Cristina (1997) 1 VR 536;
Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999} NSWCA 115;
Chimaze Holding Pty Ltd v Dyson (1995) WAR 487;
Commissioner for Railways v Halley (1978) 20 ALR 409;
Government Insurance Office of New South Wales v Aboushabi [1999] NSWCA 396; (1999) Aust Torts Reps 81-531;
J Blackwood & Son v Skilled Engineering [2008] NSWCA 142;
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552;
Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; (2002) Aust Torts Rep 81-673;
Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321;
McLean v Tedman (1984) 155 CLR 306;
Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174;
Pateman v Higgins (1957) 97 CLR 521;
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99;
Purkiss v Crittenden (1965) 114 CLR 764;
Quinn v Rocka Pipes Pty Ltd (1986) 6 NSWLR 586;
Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132;
Shorey v PT Ltd [2003] HCA 27; (2003) 197 ALR 40;
State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81-003;
Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16;
Sydney Water Corporation v Abramovic [2007] NSWCA 248; (2007) Aust Torts Rep 81-913;
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
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Details
- Case
- [2008] NSWCA 181
- Decision Date
CaseChat Overview and Summary
The appeal concerned a negligence claim brought by the appellant, Mr. Tolhurst, against the respondents, Cleary Bros (Bombo) Pty Ltd and Endeavour Coal Pty Limited. Mr. Tolhurst, a contractor's worker, was injured when a stockpile of coal collapsed while he was engaged in loading operations. The dispute centred on whether the mine owner, Endeavour Coal, owed a duty of care to Mr. Tolhurst, and the extent to which his own knowledge of an unsafe loading method and a subsequent injury affected the respondents' liability and the assessment of damages. The matter was heard in the Court of Appeal of New South Wales.
The Court of Appeal was required to determine whether the trial judge had erred in law in relation to the duty of care owed by the mine owner to an independent contractor's employee, particularly when the contractor was using an unsafe method of loading. Further, the court had to consider the effect of the appellant's knowledge that the method was unsafe on the respondents' liability. Finally, the court needed to assess whether the trial judge had correctly approached the issue of causation in relation to the appellant's present condition, specifically whether it was appropriate to consider the mine injury as the "defining event" for the purposes of damages, and whether a new trial should be ordered generally or only in respect of damages.
The Court of Appeal found that the trial judge had erred in certain aspects of the original decision. It was held that the mine owner did owe a duty of care to the contractor's worker, and that the worker's knowledge of the unsafe method did not necessarily absolve the respondents of liability. The court determined that the trial judge's approach to causation regarding the appellant's current condition was incorrect, particularly in framing the mine injury as the sole "defining event." Consequently, the appeal was allowed, and the cross-appeals were dismissed. The original orders were set aside, and a verdict and judgment were entered against both respondents, with damages to be assessed. The proceedings were remitted to the District Court for a new trial limited to the question of damages, including causation.
The Court of Appeal was required to determine whether the trial judge had erred in law in relation to the duty of care owed by the mine owner to an independent contractor's employee, particularly when the contractor was using an unsafe method of loading. Further, the court had to consider the effect of the appellant's knowledge that the method was unsafe on the respondents' liability. Finally, the court needed to assess whether the trial judge had correctly approached the issue of causation in relation to the appellant's present condition, specifically whether it was appropriate to consider the mine injury as the "defining event" for the purposes of damages, and whether a new trial should be ordered generally or only in respect of damages.
The Court of Appeal found that the trial judge had erred in certain aspects of the original decision. It was held that the mine owner did owe a duty of care to the contractor's worker, and that the worker's knowledge of the unsafe method did not necessarily absolve the respondents of liability. The court determined that the trial judge's approach to causation regarding the appellant's current condition was incorrect, particularly in framing the mine injury as the sole "defining event." Consequently, the appeal was allowed, and the cross-appeals were dismissed. The original orders were set aside, and a verdict and judgment were entered against both respondents, with damages to be assessed. The proceedings were remitted to the District Court for a new trial limited to the question of damages, including causation.
Orders
Orders of the court
(1) Appeal allowed and cross-appeals dismissed; (2) Set aside Orders 1 and 2 made by the trial judge on 27 March 2007 and order in lieu: (a) Verdict and Judgment against the first defendant/first respondent (Cleary Bros (Bombo) Pty Limited) in an amount to be assessed; (b) Verdict and Judgment against the second defendant/second respondent (Endeavour Coal Pty Limited) in an amount to be assessed; (3) Remit the proceedings to the District Court for a new trial limited to the question of damages, including causation; (4) The first and second respondents are to pay the appellant's costs of the appeal and his costs of their respective cross-appeals.
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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