DAC Finance (NSW/QLD) Pty Ltd v Cox [2024] NSWCA 170

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: DAC Finance (NSW/QLD) Pty Ltd v Cox [2024] NSWCA 170 Hearing dates: 20 June 2024 Decision date: 16 July 2024 Before: Ward P at [1]; Leeming JA at [2]; Mitchelmore JA at [102] Decision: 1. Appeal allowed. 2. Set aside orders 1 and 2 made by the District Court on 16 February 2024, and in lieu thereof enter judgment in favour of the defendants. 3. Direct the parties to file and serve, within 21 days of today, agreed short minutes of order as to the costs at first instance and in this Court, or in lieu of agreement, the orders which each seeks accompanied by submissions not exceeding 4 pages in support, with a view to any dispute as to costs being determined on the papers. Catchwords: NEGLIGENCE – workplace injury – occupier's liability – plaintiff suffered jolt when descending elevator stopped without warning during planned power interruption – power testing conducted by other employees at the workplace – no steps taken to ensure lifts were not being used – no warnings given – litigation conducted on basis that plaintiff's employer was not sued – plaintiff sued two related companies which owned the land and operated the business – whether related companies liable in negligence as occupiers – whether evidence capable of sustaining findings of breach attributable to related companies, as opposed to attributable to plaintiff's employer – appeal allowed and judgments entered in favour of defendants Legislation Cited: Civil Liability Act 2002 (NSW), Pt 2 Evidence Act 1995 (NSW), s 60 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Limitation Act 1969 (NSW), s 18A Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 17.3 Workers Compensation Act 1987 (NSW), ss 34, 36, 37, 38, 151G, 151H, 151J, 151Z, Pt 5 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 326, Pt 7 of Ch 7 Cases Cited: AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346 Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119; 318 IR 31 Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60 Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423; [2005] Aust Torts Rep 81-814 Galea v Bagtrans Pty Ltd [2010] NSWCA 350; [2011] Aust Torts Rep 82-078 Kabic v AAI Ltd t/as GIO (No 2) [2019] NSWCA 311 Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; 324 IR 34 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; [1997] HCA 389 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 QBE v Orcher [2013] NSWCA 478 Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31; 230 IR 438 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510; [2005] EWCA Civ 1151 Williams v Metcash Trading Ltd [2019] NSWCA 94; 286 IR 438 Category: Principal judgment Parties: DAC Finance (NSW/Qld) Pty Ltd (First Appellant) DAC Finance Pty Ltd (Second Appellant) Patricia Cox (Respondent) Representation: Counsel: D Priestley SC (Appellants) D Hooke SC, M Hammond, A Saleh (Respondent)