Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 Hearing dates: 18 February 2022 Decision date: 15 March 2022 Before: Leeming JA at [1]; Simpson AJA at [58]; N Adams J at [71]. Decision: 1. Appeal allowed with costs. 2. Set aside the judgment and orders made by the District Court on 17 June 2021, and in lieu thereof enter judgment for the plaintiff with costs. 3. Direct the parties to supply within 14 days any agreed further orders, or in default of agreement, the orders for which they contend, and short submissions in support, as to the form and quantum of the judgment in Mr Cavanagh's favour. Catchwords: NEGLIGENCE – workplace injury – plaintiff employee sustained injury following years of operating machine requiring him to drive tractor while turning his head – plaintiff gave divergent accounts of how frequently and how long he turned his head – primary judge dismissed claim on basis that injury not foreseeable – reasons for judgment very concise – whether primary judge made finding concerning plaintiff turning his head – whether if finding made, it accorded with evidence – whether reasons inadequate – whether proceedings needed to be remitted for further trial – causation and damages not in issue – finding of breach made and judgment for plaintiff entered Legislation Cited: Civil Liability Act 2002 (NSW), s 3B(1)(f) Civil Procedure Act 2005 (NSW), s 56 Occupational Health and Safety Act 2000 (NSW) Occupational Health and Safety Regulation 2001 (NSW) Supreme Court Act 1970 (NSW), s 75A(10) Supreme Court Rules 1970 (NSW), Pt 51 r 23 Uniform Civil Procedure Rules (2005), r 51.53 Workers Compensation Act 1987 (NSW), Pt 5 Div 3 Workers Compensation Act 1987 (NSW), Pt 5, ss 151H, 151I Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 318, 326 Cases Cited: Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1 Bray v Ford [1896] AC 44 Lloyd v Thornbury [2019] NSWCA 154 Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; [1963] HCA 4 Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Seltsam Pty Ltd v McNeil [2006] NSWCA 158; 4 DDCR 1 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Category: Principal judgment Parties: Anthony Cavanagh (Appellant) Manning Valley Race Club Ltd (formerly known as Taree-Wingham Race Club Ltd) Representation: Counsel: H Marshall SC; P Menary (Appellant) J Catsanos SC; T Berberian (Respondent)