Ward Enterprises Pty Limited v Ahern - [2000] NSWCA 184

CITATION: Ward Enterprises Pty Limited v Ahern [2000] NSWCA 184

FILE NUMBER(S): CA 40994/98

HEARING DATE(S): 8 June 2000

JUDGMENT DATE:
1 August 2000

PARTIES :

R L & B A Ward Enterprises Pty Limited v Rae Ahern & TNT Management Pty Limited

JUDGMENT OF: Mason P at 1; Meagher JA at 4; Clarke AJA at 25

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 9904/97

LOWER COURT
JUDICIAL OFFICER : Cooper DCJ

COUNSEL: Appellant: A.R. Ashburner
First respondent: L. King/J. Kernich
Second respondent: J. Sharpe.

SOLICITORS: Appellant: Ferguson Holz
First respondent: Jones Staff & Co
Second respondent: Ebsworth & Ebsworth

CATCHWORDS: Negligence, apportionment, joint tortfeasors, death of employee, delay in bringing action, lapse of time from damage to judgement of 19.5 years, calculation of interest, s.94 Supreme Court Act is there a right to interest, return to workforce, financial benefit resulting from death.

LEGISLATION CITED: s. 94 Supreme Court Act,, 1970.

CASES CITED:
Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520, Carroll v Purcell (1961) 107 CLR 73, Dominish v Astill (1979) 2 NSWLR 368.

DECISION: 1. Appeal allowed in part; 2. Order 3 of the judgment of Cooper DCj dated 1 December 1998 set aside; 3. In lieu thereof, order that RL & BA Ward Enterprises Pty LImited contribute 15% and TNT Management Pty Limited contribute 85% of the plaintiff's damages and costs; 4. The appellant RL & BA Ward Enterprises Pty Limited should pay the costs of the first respondent, Rae Ahern in full, and the second repondent, TNT Management Pty Limited, indemnify the appellant as to one half its costs of the appeal

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RL & BA WARD ENTERPRISES PTY LTD V Rae AHERN and TNT MANAGEMENT PTY LTD
DUTY OF CARE-BREACH OF DUTY-WHERE BREACH RESULTED IN DEATH OF EMPLOYEE-DAMAGES-APPORTIONMENT-EXTENT OF LIABILITY OF EMPLOYER-WHERE EMPLOYER HAD AGREEMENT WITH THIRD PARTY- WHERE EMPLOYEE CARRYING OUT WORK WITH THIRD PARTY
Facts: Mr Ahern was employed by RL & BA Ward Enterprises Pty Ltd (“Wards”) as a truck driver. He was killed in an accident when the load on the semi-trailer he was driving shifted, the brakes failed, and the vehicle veered into the end of a bridge.
His widow successfully sued Wards and TNT Management Pty Ltd (“TNT”). TNT were responsible for loading the semi-trailer and for the maintenance of the vehicle. She alleged that Wards had been negligent in not ensuring the brakes were in good working order, and that TNT had been negligent for not loading the semi-trailer in a safe and secure manner.
The trial judge held that Wards and TNT were equally responsible for the damage, and that each party should pay its own costs.
Wards appealed against this decision. They submitted that as a result of an agreement between themselves and TNT, it was TNT’s negligence which brought about the accident and death of Mr Ahern, and that Wards’ share of the…

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 Ward Enterprises Pty Limited v Ahern

Details

AGLC: Ward Enterprises Pty Limited v Ahern [2000] NSWCA 184
Case: [2000] NSWCA 184
Decision Date: 1 August 2000

CaseChat Overview and Summary

The case of *Ward Enterprises Pty Limited v Ahern* concerned an appeal to the New South Wales Court of Appeal regarding a claim for damages arising from the death of an employee. The primary dispute involved the apportionment of liability between two parties, Ward Enterprises Pty Limited and TNT Management Pty Limited, for the plaintiff's loss.

The Court of Appeal was required to determine several key legal issues. These included whether the trial judge had erred in apportioning the damages between the two tortfeasors, the impact of the significant delay in bringing the action (19.5 years from the damage to judgment) on the calculation of interest, and the extent to which the plaintiff's return to the workforce and any financial benefit derived from the employee's death should be considered in assessing damages.

The Court found that the trial judge's apportionment of liability was incorrect and that a more equitable distribution was warranted given the respective contributions of each party to the loss suffered. The Court also considered the principles governing the award of interest under section 94 of the *Supreme Court Act 1970* (NSW) in cases of significant delay, and how to account for the plaintiff's subsequent re-employment and any financial gains resulting from the death.

Ultimately, the appeal was allowed in part. The original order for apportionment was set aside and replaced with an order that Ward Enterprises Pty Limited contribute 15% and TNT Management Pty Limited contribute 85% of the plaintiff's damages and costs. The appellant was ordered to pay the costs of the first respondent in full and was indemnified by the second respondent for one half of its costs of the appeal.

Orders

Orders of the court

1. Appeal allowed in part; 2. Order 3 of the judgment of Cooper DCj dated 1 December 1998 set aside; 3. In lieu thereof, order that RL & BA Ward Enterprises Pty LImited contribute 15% and TNT Management Pty Limited contribute 85% of the plaintiff's damages and costs; 4. The appellant RL & BA Ward Enterprises Pty Limited should pay the costs of the first respondent, Rae Ahern in full, and the second repondent, TNT Management Pty Limited, indemnify the appellant as to one half its costs of the appeal

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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CITATION:	Ward Enterprises Pty Limited v Ahern [2000] NSWCA 184
FILE NUMBER(S):	CA 40994/98
HEARING DATE(S):	8 June 2000
JUDGMENT DATE:	1 August 2000
PARTIES :	R L & B A Ward Enterprises Pty Limited v Rae Ahern & TNT Management Pty Limited
JUDGMENT OF:	Mason P at 1; Meagher JA at 4; Clarke AJA at 25

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	9904/97
LOWER COURT JUDICIAL OFFICER :	Cooper DCJ

COUNSEL:	Appellant: A.R. Ashburner First respondent: L. King/J. Kernich Second respondent: J. Sharpe.
SOLICITORS:	Appellant: Ferguson Holz First respondent: Jones Staff & Co Second respondent: Ebsworth & Ebsworth
CATCHWORDS:	Negligence, apportionment, joint tortfeasors, death of employee, delay in bringing action, lapse of time from damage to judgement of 19.5 years, calculation of interest, s.94 Supreme Court Act is there a right to interest, return to workforce, financial benefit resulting from death.
LEGISLATION CITED:	s. 94 Supreme Court Act,, 1970.
CASES CITED:	Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520, Carroll v Purcell (1961) 107 CLR 73, Dominish v Astill (1979) 2 NSWLR 368.
DECISION:	1. Appeal allowed in part; 2. Order 3 of the judgment of Cooper DCj dated 1 December 1998 set aside; 3. In lieu thereof, order that RL & BA Ward Enterprises Pty LImited contribute 15% and TNT Management Pty Limited contribute 85% of the plaintiff's damages and costs; 4. The appellant RL & BA Ward Enterprises Pty Limited should pay the costs of the first respondent, Rae Ahern in full, and the second repondent, TNT Management Pty Limited, indemnify the appellant as to one half its costs of the appeal