INQUA Pty Ltd (543) v McFADDEN [1990] NSWCA 98

INQUA Pty Ltd (543) v McFADDEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, SAMUELS and CLARKE JJA 9 March 1990, 16 March 1990

[1990] NSWCA 98

JOINT LIABILITY — joint tortfeasors — head contractor for construction of transmission line subcontracts some work — subcontractor's employees place rope across public road — obvious danger — plaintiff injured when car brakes suddenly to avoid collision with rope before flagmen placed in position by subcontractor — suffers whiplash injury — trial judge (Enderby J) apportions liability as between head contractor and subcontractor 75:25 — appeal on apportionment — held: (1) It is rare that the apportionment between tortfeasors in respect of their negligence is disturbed by an appellate court. Pennington v Norris (1957) 96 CLR 10, 16 applied. (2) However, in the present case, it was plain that the subcontractor was principally liable for the injuries suffered by the plaintiff; (3) Accordingly, the apportionment should be 25:75. DAMAGES — personal injuries — two injuries — second injury only compensable — married woman camp site cook — whiplash injuries — computation of past economic loss and future loss of economic capacity — findings as to diminution caused by first accident — no issues of credibility — held: Error shown — recalculation appropriate — damages recalculated — no issue of principle.

Kirby ACJ I agree with Clarke JA. Samuels JA I agree with Clarke JA.

Clarke JA On 23 September 1987 Mr Justice Enderby, who had heard both actions the subject of the present appeals, gave judgment in which he found in favour of the plaintiff (McFadden) against the defendants Balfour Beatty Power Constructions Australia Pty Ltd ("Balfour") and Inqua Pty Ltd ("Inqua") and awarded McFadden damages, including interest, of $123,965.00. Both defendants appealed and each instituted a cross claim in which it claimed contribution against the other. In the cross claims Balfour was found 75 per cent and Inqua 25 per cent responsible for McFadden's damages.