Beazley JA at [1] McColl JA at [2] Handley AJA at [86]
Decision:
1. Appeal allowed with costs. 2. Set aside Order 1 in the verdict and judgment for the plaintiff entered on 12 May 2010; 3. In lieu of Order 1, substitute verdict and judgment for the appellant in the sum of $633,799 with effect from 22 March 2010; 4. Respondents to have a certificate under the Suitors Fund Act 1951 (NSW); 5. Cross appeal dismissed with costs. [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:
NEGLIGENCE - employer's liability - causation - employee working on top of wall while resting one foot on scissor lift - employee injured because of negligent operation of concrete pouring boom causing him to be thrown over wall from which metal bars protruding then falling to ground - no safety harness provided - no evidence whether in circumstances of the accident safety harness a reasonably practicable precaution - whether causation established -
CONTRIBUTION - joint or several tortfeasors - third party recovery from employer of injured worker - injured worker director and shareholder of employer company - s 151Z(2) Workers Compensation Act 1987 (NSW) -
DAMAGES - plaintiff with pre-existing condition - whether a contributing factor to continuing disability - DAMAGES - non-economic loss - appellate review of assessment of percentage of "most extreme case" - s 16 Civil Liability Act 2002 (NSW) - DAMAGES - non-economic loss - whether award excessive - relevance of plaintiff's age to assessment - DAMAGES - gratuitous attendant care services - whether award excessive - s 15 Civil Liability Act 2002 (NSW)
[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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AGLC
Varga v Galea [2011] NSWCA 76
Case
[2011] NSWCA 76
Decision Date
CaseChat Overview and Summary
This case concerned an appeal and cross-appeal from a judgment of the Supreme Court of New South Wales. The plaintiff, Mr. Galea, was injured while working on a wall when a concrete pouring boom was negligently operated, causing him to fall from the wall. He sustained injuries, including from protruding metal bars. Mr. Galea was a director and shareholder of the employer company, Varga. The appeal concerned the employer's liability for negligence, specifically issues of causation and the provision of safety equipment, as well as the extent of damages awarded. The cross-appeal related to the quantum of damages.
The primary legal issues before the Court of Appeal were whether the employer's negligence caused the plaintiff's injuries, considering the plaintiff's position on the scissor lift and the nature of the fall; whether the employer had failed to provide a reasonably practicable safety precaution, such as a safety harness; and the appropriate assessment of damages, including non-economic loss, gratuitous attendant care services, and the impact of a pre-existing condition on the plaintiff's continuing disability. The court also considered the application of section 151Z(2) of the Workers Compensation Act 1987 (NSW) regarding third-party recovery from the employer.
The Court of Appeal found that the employer's negligence was causative of the plaintiff's injuries. The court reasoned that the employer owed a duty of care to the plaintiff, and the negligent operation of the concrete pouring boom was a direct cause of the fall. While the plaintiff's position on the scissor lift was noted, the court determined that the employer's failure to provide a safety harness, in circumstances where it was a reasonably practicable precaution, contributed to the severity of the injuries sustained. The court also reviewed the assessment of damages, applying principles under the Civil Liability Act 2002 (NSW) regarding non-economic loss and gratuitous attendant care services, and considering the plaintiff's age and pre-existing condition.
The appeal was allowed, and the original judgment for the plaintiff was set aside. A new verdict and judgment were entered for the appellant (Varga) in the sum of $633,799. The cross-appeal was dismissed.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside Order 1 in the verdict and judgment for the plaintiff entered on 12 May 2010;
3. In lieu of Order 1, substitute verdict and judgment for the appellant in the sum of $633,799 with effect from 22 March 2010;
4. Respondents to have a certificate under the Suitors Fund Act 1951 (NSW);
5. Cross appeal dismissed with costs.
[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.]