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Vo v Tran

Vo v Tran

Case [2016] NSWSC 1043 29 July 2016

Negligence

Compensatory Damages

Contributory Negligence

Personal Injury

Tort Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Vo v Tran [2016] NSWSC 1043
Hearing dates: 1-3 February 2016
Date of orders: 29 July 2016
Decision date: 29 July 2016
Jurisdiction: Common Law
Before: Hall J
Decision:
Verdict in favour of the plaintiff.
Judgment to be entered following further submissions on damages.

Catchwords: CIVIL LAW – Torts – Occupier’s liability – Negligence – Personal injury – Plaintiff visiting work premises occupied by defendants as a shop premises – Plaintiff not in the capacity of employee of the defendants – Crushing injury to plaintiff’s hand – No guarding or other safeguards in respect of operation of a juicing machine – Workers’ compensation paid by insurer of defendants – Issue as to possible double compensation on an award of common law damages – Plaintiff’s understanding to repay workers’ compensation insurer in circumstances where no statutory obligation arises under the Workers’ Compensation Act – Contributory negligence not established – Obvious risk not established – Damages for physical injuries including ring finger amputation and psychiatric injury
Legislation Cited: Civil Liability Act 2002
Workers’ Compensation Act 1987
Workers’ Compensation Act 1926
Workers Compensation (Compensation Court Amendment) Act 1989
Workmen’s Compensation Act 1910
Workplace Injury Management and Workers’ Compensation Act 1999
Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; 61 ALJR 180
Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Aust Torts Reports 81-815
Dell v Dalton (1991) 23 NSWLR 528
Dover Navigation Co v Craig [1940] AC 190
Franklins Self‑Serve Pty Ltd v Wyber [1999] NSWCA 390; 48 NSWLR 249
Graham v Baker [1961] HCA 48; 106 CLR 340
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473
Laoulach v Ibrahim [2011] NSWCA 402
Leichhardt Municipal Council v Montgomery [2005] NSWCA 432
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 38
Paff v Speed [1961] HCA 14; 105 CLR 549
Penrith City Council v Parks [2004] NSWCA 201
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; 80 ALJR 1
Category: Principal judgment
Parties: Thi Ngoc Hien Vo (Plaintiff)
Hung Vien Tran (First Defendant)
Thuy My Le (Second Defendant)
Representation:
Counsel:
DE Baran (Plaintiff)
N Polin SC (Defendants)
Solicitors:
Shine Lawyers (Plaintiff)
Curwoods Lawyers (Defendants)

File Number(s): 2014/242686

Judgment

The Proceedings

These proceedings involve a claim by the plaintiff for common law damages in respect of injury received at the defendants’ premises on 13 February 2012. On that date the plaintiff’s left hand was caught in a juicing machine causing a partial amputation of one of her fingers and injuries to others.
The proceedings were commenced by Statement of Claim filed on 18 August 2014 in which the plaintiff alleged that on the abovementioned date she attended the business…

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 Vo v Tran

Details

AGLC: Vo v Tran [2016] NSWSC 1043
Case: [2016] NSWSC 1043
Decision Date: 29 July 2016

CaseChat Overview and Summary

In the case of Vo v Tran, the plaintiff, Vo, claimed damages from the defendants, Tran, for injuries sustained on the defendants' shop premises. Vo was not employed by the defendants but was visiting the premises when he suffered a crushing injury to his hand on a juicing machine. The defendants had not implemented any safeguards for the operation of the machine. The primary issue before the court was whether Vo could recover common law damages for his injuries, given that he had already received workers’ compensation from the defendants’ insurer.

The court considered whether the statutory workers' compensation scheme precluded Vo from claiming common law damages. It examined whether Vo had any obligation to repay the workers' compensation insurer if he were to receive common law damages. The court determined that Vo's receipt of workers’ compensation did not bar his claim for common law damages, provided he could repay the insurer. The court also examined the defendants' argument that Vo's injuries were due to an obvious risk, which would have excluded liability under the occupiers' liability provisions. However, the court found that the risk was not obvious and that the defendants were negligent in failing to provide safeguards for the juicing machine.

The court held that Vo was entitled to recover common law damages for his injuries, including the amputation of his ring finger and psychiatric injury. It dismissed the defendants' argument regarding an obvious risk and contributory negligence. The court concluded that Vo's injuries were a direct result of the defendants' negligence in not providing adequate safety measures. The final orders were that the defendants were liable to pay Vo damages for his injuries.

Orders