Transpacific Industrial Solutions Pty Ltd v Phelps - [2013] NSWCA 31

Court of Appeal

New South Wales

Case Title: Transpacific Industrial Solutions Pty Limited v Phelps

Medium Neutral Citation: [2013] NSWCA 31

Hearing Date(s): 11 February 2013

Decision Date: 26 February 2013

Before: McColl JA (at [1]); Basten JA (at [2]); Barrett JA (at [3])

Decision:
1.Grant to the second respondent leave to file its notice of cross-appeal.
2. Appeal allowed.
3. Cross-appeal allowed.
4. Set aside the judgment and orders of the District Court of 15 December 2011.
5. In lieu thereof order:
(a) Judgment for the first defendant against the plaintiff.
(b) Judgment for the second defendant against the plaintiff.
(c) That the plaintiff pay the costs of the first defendant and the second defendant.
6. Order that the second respondent (cross-appellant) pay the costs of the other parties of the motion seeking leave to file a notice of cross-appeal.
7. Order that the first respondent pay the costs of the other parties of both the appeal and the cross-appeal.
8. Order that the first respondent, if qualified, have a certificate under the Suitors' Fund Act 1951.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - duty of care - workplace injury - employee of labour hire company lost footing on stairs when moving bulky office furniture at direction of host employer - content of duty of care - whether warning and instruction by host employer required - commonplace task - no unusual or unexpected risks - no special precautions required.

Legislation Cited: Civil Liability Act 2002, s 5B
Workers Compensation Act 1987, Part 7

Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2003) 239 CLR 420
Electric Power Transmission Pty Limited v Cuiuli [1961] HCA 3; (1961) 104 CLR 177
O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225
Pritchard v Trius Constructions Pty Ltd [2011] NSWSC 749
Seage v State of New South Wales [2008] NSWCA 328
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Wilkinson v Law Courts Ltd [2001] NSWCA 196

Category: Principal judgment

Parties: Transpacific Industrial Solutions Pty Limited - Appellant
Kevin Ernest Phelps - First Respondent
Workpac Newcastle Pty Limited - Second Respondent

Representation

- Counsel: J E Maconachie QC/R G Gambi - Appellant
B M J Toomey QC/G R Graham - First Respondent
P M Morris SC - Second Respondent

- Solicitors: McCabe Terrill Lawyers Pty Ltd - Appellant
Philip Watson Pty Ltd - First Respondent
Moray & Agnew - Second Respondent

File Number(s): 2012/11942

Decision Under Appeal

- Before: North DCJ

- Date of Decision: 30 November 2011

- Court…

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.

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Details

Case: [2013] NSWCA 31
Decision Date: 26 February 2013

CaseChat Overview and Summary

In the New South Wales Court of Appeal, Transpacific Industrial Solutions Pty Ltd (the first defendant) and another party (the second defendant) appealed a judgment of the District Court concerning a workplace injury sustained by the plaintiff, Mr. Phelps. Mr. Phelps, an employee of a labour hire company, lost his footing on stairs while moving bulky office furniture at the direction of his host employer, the second defendant.

The central legal issues before the Court of Appeal were whether the second defendant owed a duty of care to the plaintiff, and if so, what the content of that duty was. Specifically, the court considered whether the second defendant was required to provide a warning or specific instructions to the plaintiff regarding the task of moving furniture, given that it was a commonplace activity and did not involve unusual or unexpected risks.

The Court of Appeal reasoned that the task of moving office furniture was a common one, and there were no specific or unusual risks associated with it that would necessitate special precautions or explicit instructions from the host employer. The court found that the host employer had fulfilled its duty of care by not exposing the employee to any foreseeable or unusual risks. Consequently, the appeal and cross-appeal were allowed, and the judgment of the District Court was set aside.

The final orders of the Court of Appeal were that judgment be entered for both the first and second defendants against the plaintiff, with the plaintiff ordered to pay the costs of both defendants. The court also made orders regarding the costs of the appeal and cross-appeal, and a certificate under the Suitors' Fund Act 1951 was granted to the first respondent if qualified.

Orders

Orders of the court

1.Grant to the second respondent leave to file its notice of cross-appeal.

2. Appeal allowed.

3. Cross-appeal allowed.

4. Set aside the judgment and orders of the District Court of 15 December 2011.

5. In lieu thereof order:

(a) Judgment for the first defendant against the plaintiff.

(b) Judgment for the second defendant against the plaintiff.

6. Order that the second respondent (cross-appellant) pay the costs of the other parties of the motion seeking leave to file a notice of cross-appeal.

7. Order that the first respondent pay the costs of the other parties of both the appeal and the cross-appeal.

8. Order that the first respondent, if qualified, have a certificate under the Suitors' Fund Act 1951.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Transpacific Industrial Solutions Pty Limited v Phelps
Medium Neutral Citation:	[2013] NSWCA 31
Hearing Date(s):	11 February 2013
Decision Date:	26 February 2013
Before:	McColl JA (at [1]); Basten JA (at [2]); Barrett JA (at [3])
Decision:	1.Grant to the second respondent leave to file its notice of cross-appeal. 2. Appeal allowed. 3. Cross-appeal allowed. 4. Set aside the judgment and orders of the District Court of 15 December 2011. 5. In lieu thereof order: (a) Judgment for the first defendant against the plaintiff. (b) Judgment for the second defendant against the plaintiff. (c) That the plaintiff pay the costs of the first defendant and the second defendant. 6. Order that the second respondent (cross-appellant) pay the costs of the other parties of the motion seeking leave to file a notice of cross-appeal. 7. Order that the first respondent pay the costs of the other parties of both the appeal and the cross-appeal. 8. Order that the first respondent, if qualified, have a certificate under the Suitors' Fund Act 1951. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - duty of care - workplace injury - employee of labour hire company lost footing on stairs when moving bulky office furniture at direction of host employer - content of duty of care - whether warning and instruction by host employer required - commonplace task - no unusual or unexpected risks - no special precautions required.
Legislation Cited:	Civil Liability Act 2002, s 5B Workers Compensation Act 1987, Part 7
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2003) 239 CLR 420 Electric Power Transmission Pty Limited v Cuiuli [1961] HCA 3; (1961) 104 CLR 177 O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 Pritchard v Trius Constructions Pty Ltd [2011] NSWSC 749 Seage v State of New South Wales [2008] NSWCA 328 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Wilkinson v Law Courts Ltd [2001] NSWCA 196
Category:	Principal judgment
Parties:	Transpacific Industrial Solutions Pty Limited - Appellant Kevin Ernest Phelps - First Respondent Workpac Newcastle Pty Limited - Second Respondent
Representation
- Counsel:	J E Maconachie QC/R G Gambi - Appellant B M J Toomey QC/G R Graham - First Respondent P M Morris SC - Second Respondent
- Solicitors:	McCabe Terrill Lawyers Pty Ltd - Appellant Philip Watson Pty Ltd - First Respondent Moray & Agnew - Second Respondent
File Number(s):	2012/11942
Decision Under Appeal
- Before:	North DCJ
- Date of Decision:	30 November 2011
- Court…