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Williams v Twynam Agricultural Group Pty Ltd

Williams v Twynam Agricultural Group Pty Ltd

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Case Copied 16 September 2011 106 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098
Hearing dates: 8/8/11, 9/8/11, 10/8/11, 11/8/11, 12/8/11
Decision date: 16 September 2011
Jurisdiction: Civil
Before: HOEBEN J
Decision:
Plaintiff succeeded in establishing liability in negligence against both defendants. Short Minutes setting out damages to be filed.

Catchwords: NEGLIGENCE - liability of occupier and employer - content of duty of care in each case - breach of duty of care - whether owner and operator of farm breached duty of care to plaintiff employee of contractor by failing to mark a hazard on one of its internal roads - plaintiff driving vehicle which collided with culvert and turned over - foreseeability of risk - adequacy of response by occupier of farm - NEGLIGENCE - breach of duty of care by employer - non-delegable duty of care - breach of duty by occupier of farm became breach of duty by employer.
NEGLIGENCE - causation - whether failure to properly mark road hazard caused accident - whether speed of vehicle caused accident - whether plaintiff keeping a proper lookout.
CONTRIBUTORY NEGLIGENCE - whether failure to wear seatbelt made any contribution to plaintiff's injuries.
CROSS-CLAIMS - apportionment of liability between occupier of farm and employer - whether employer entitled to recovery from owner of farm of compensation paid to plaintiff - section 151Z(1)(d) Workers Compensation Act 1987 - terms of contract between occupier of farm and employer - whether employer breached terms of contract - if employer breached terms of contract whether indemnity clause effective to pass onto employer the farm owner's liability to pay damages to plaintiff.
DAMAGES - calculation of damages against farm owner in accordance with Civil Liability Act 2005 - calculation of damages against employer pursuant to Workers Compensation Act 1987 - paucity of evidence as to economic loss - what approach to be followed by Court - plaintiff's entitlement to damages against farm owner to be adjusted by reference to s151Z(2) Workers Compensation Act 1987.
Legislation Cited: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48, (2009) 239 CLR 420
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424
Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479 at 488
Burton v Brooks [2011] NSWCA 175
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114
Husher v Husher & Anor (1999) HCA 47, (1999) 197 CLR 138
I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486
Kulh v Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375
Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270
Lepore v State of New South Wales & Anor [2001] 52 NSWLR 420
Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; (2004) 41 MVR 235
Nominal Defendant v Lane…

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: [2011] NSWSC 1098
Decision Date: 16 September 2011

CaseChat Overview and Summary

Williams sued Twynam Agricultural Group Pty Ltd, the owner of a farm, and also his employer, contending that the farm owner's failure to mark a hazard on an internal road led to a vehicle accident in which he was injured. The employer, in turn, sought indemnity from the farm owner under the terms of their contract. The dispute was heard by the Supreme Court of New South Wales.

The court needed to determine whether the farm owner and the employer breached their duties of care. The court also had to consider whether the farm owner's failure to mark the hazard caused the accident and whether the employer breached any contractual obligations. Additionally, the court needed to assess the employer's right to indemnity from the farm owner, the employer's entitlement to a set-off against the damages paid to the plaintiff, and the calculation of damages.

The court found that the farm owner breached its duty of care by failing to mark the hazard, and this breach was also attributable to the employer as it fell within the non-delegable duty of care owed by the employer. The court held that the farm owner's breach of duty was the cause of the accident, not the speed of the vehicle or the plaintiff's failure to wear a seatbelt. The employer's cross-claim for indemnity and recovery was dismissed as the employer had breached the terms of the contract by failing to ensure that its employees were properly supervised and instructed. The court also found that the employer was not entitled to a set-off against the damages paid to the plaintiff.

The court ordered Twynam Agricultural Group Pty Ltd to pay the plaintiff damages, calculated in accordance with the Civil Liability Act 2005, and the employer to pay the plaintiff damages pursuant to the Workers Compensation Act 1987. The court adjusted the damages payable by the farm owner by reference to s151Z(2) Workers Compensation Act 1987.

Orders