Turner v Carrington Ginning Pty Limited - [2021] NSWSC 445

Supreme Court

New South Wales

Medium Neutral Citation: Turner v Carrington Ginning Pty Limited [2021] NSWSC 445
Hearing dates: 30 November, 1, 2, 3, 4 and 17 December 2020
Date of orders: 30 April 2021
Decision date: 30 April 2021
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Judgment for the plaintiff for the sum of $401,428.46.
(2) The defendant is to pay the plaintiff’s costs.
(3) Should the parties seek a variation on that costs order, I grant liberty to apply on 3 days’ notice.

Catchwords:
NEGLIGENCE – Application of Civil Liability Act 2003 (QLD) – Truck driver off-site accident – Disputed version – Credibility Issues – Causation – Whether contributory negligence – Whether any reduction for employer’s liability pursuant to Workers Compensation Act 1987 (NSW) s 151Z
DAMAGES – Competing medical evidence – Credibility of plaintiff – Contrary objective evidence

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Liability Act2003 (QLD)
Civil Liability Regulation2014 (QLD)
Workers Compensation Act 1987 (NSW)

Cases Cited:
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24
Mason v Demasi [2009] NSWCA 227
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320
Woolworths Limited v Warfe [2013] VSCA 22

Category: Principal judgment
Parties: Jason James Turner (Plaintiff)
Carrington Ginning Pty Limited (Defendant)
Representation:
Counsel:
D Campbell SC with J Ryan (Plaintiff)
S Glascott (Defendant)
Solicitors:
Neville Hourn + Borg Legal (Plaintiff)
Holman Webb (Defendant)

File Number(s): 2018/200769
Publication restriction: None

Judgment

The plaintiff alleges that he sustained injuries in an accident at the defendant’s premises on 28 April 2016.
During the course of his employment with T&FS Woods Pty Ltd, a carrier company, he drove a B-double truck and trailer carrying cotton bales to the premises of the defendant at Goondiwindi.
He says that during the course of unloading, a forklift operator pushed or nudged a bale on the trailer which fell from a height above him, knocking him to the ground. He maintains that he was knocked unconscious and sustained severe injuries, including fractures of the thoracic spine.
Whilst the defendant acknowledges that the plaintiff sustained injury at its premises in Goondiwindi on the particular day, it disputes that the accident was caused by any negligence on its part. It does not accept that the accident occurred as the plaintiff asserts. In particular, it asserts that the accident happened because the plaintiff placed himself in a position of danger, that is, adjacent to the B-double trailer, without warning or informing the defendant’s forklift operators that he was moving into the “danger zone”.
The defendant also asserts that the plaintiff is not as disabled as he maintains and that his entitlement to damages on account of loss of earning capacity and domestic assistance would be limited. The defendant points to what are said to be significant inconsistencies between objective evidence relied on by the defendant and the plaintiff’s claims,…

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: [2021] NSWSC 445
Decision Date: 30 April 2021

CaseChat Overview and Summary

In the case of Turner v Carrington Ginning Pty Limited, the plaintiff, Mr Turner, sought damages for injuries sustained in an off-site accident involving his employer's truck. The employer, Carrington Ginning Pty Limited, denied liability and raised issues of contributory negligence. The case was heard in the District Court of Queensland. The primary legal issues revolved around whether the employer was negligent, the credibility of the plaintiff's evidence, and the applicability of contributory negligence and statutory reductions under the Workers Compensation Act 1987 (NSW).

The court considered the evidence presented, focusing on the credibility of the plaintiff and the medical evidence. It examined the circumstances surrounding the accident and the plaintiff's version of events. The court also assessed the employer's liability and whether any reduction in damages was warranted under the statutory provisions. The court found that the plaintiff's version of events was more credible, despite the employer's arguments about contributory negligence. The medical evidence supported the plaintiff's claim of ongoing injuries, and the court held that the employer was liable for the damages incurred.

The court's reasoning led to the conclusion that the plaintiff was entitled to damages, but it required consideration of the statutory provisions for any reduction. Ultimately, the court determined that the plaintiff was entitled to compensation without reduction, as the statutory provisions did not apply to the circumstances of this case. The final orders of the court awarded the plaintiff damages for his injuries and rejected the employer's claims of contributory negligence and statutory reduction.

Orders