Bauer Media Pty Ltd v Khedrlarian [2020] NSWCA 288

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bauer Media Pty Ltd v Khedrlarian [2020] NSWCA 288 Hearing dates: 18 May 2020 Date of orders: 18 November 2020 Decision date: 18 November 2020 Before: Basten and Meagher JJA at [1]; Emmett AJA at [34] Decision: (1) Allow the appeal by Bauer Media and set aside the orders 2, 4, 6, 9 and 11 made in the District Court on 4 October 2019. (2) In lieu thereof, (a) dismiss, as against the first defendant, the plaintiff's amended statement of claim filed on 17 March 2017; (b) order that the plaintiff pay the costs of the first defendant in the District Court. (3) Order that the first respondent, Mary Khedrlarian, pay the costs of the appellant of its appeal in this Court. (4) Grant the Workers Compensation Nominal Insurer an extension of time and leave to file an appeal in the form of the notice of cross-appeal filed on 16 April 2020. (5) Allow the Workers Compensation Nominal Insurer's appeal and set aside orders 3, 5, 7, 10 and 11 made in the District Court on 4 October 2019. (6) In lieu thereof, (a) dismiss, as against the second defendant, the plaintiff's amended statement of claim filed on 17 March 2017; (b) order that the plaintiff pay the costs of the second defendant in the District Court. (7) Order that the first respondent, Mary Khedrlarian, pay the costs of the appeal brought by the Workers Compensation Nominal Insurer in this Court. Catchwords: TORTS — negligence — breach of duty — provision of safe system of work — precautions against workplace injury — adequacy of particularisation of precautions — evidence of whether precautions would obviate risk Legislation Cited: Civil Liability Act 2002 (NSW), s 5B Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), s 4 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Occupational Health and Safety Act 2000 (NSW) Suitors' Fund Act 1951 (NSW), s 8 Workers Compensation Regulation 2016 (NSW), Pt 17, Div 3 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 346 Cases Cited: Bauer Media Pty Ltd t/as Network Services Company v Khedrlarian [2018] NSWCA 208 Brody v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14 Metropolitan Gas Co v City of Melbourne (1924) 35 CLR 186; [1924] HCA 46 Texts Cited: Australian Standard AS1470-1986 Health and Safety at Work – Principles and Practices Category: Principal judgment Parties: Bauer Media Pty Ltd t/as Network Services Company (Appellant/Second Cross-Respondent) Mary Khedrlarian (First Respondent/First Cross-Respondent) Workers Compensation Nominal Insurer (Second Respondent/First Cross-Appellant) Representation: Counsel: G M Watson SC with A L Reid (Appellant/Second Cross-Respondent) G Parker SC with E Chrysostomou (First Respondent/First Cross-Respondent) F Doak (Second Respondent/First Cross-Appellant)