Nankervis v Ulan Coal Miles Ltd & Anor [1999] NSWSC 899

New South Wales Supreme Court CITATION : Nankervis v Ulan Coal Miles Ltd & Anor [1999] NSWSC 899 CURRENT JURISDICTION : FILE NUMBER(S) : CW500025/97 HEARING DATE(S) : 24 August 1999 JUDGMENT DATE : 24 August 1999

PARTIES : Michael Francis Nankervis Ulan Coal Mines Ltd and Anor JUDGMENT OF : Wood CJatCL

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

S.E. Torrington (Plaintiff) COUNSEL : B.G. Smith (1D) Turnbull (2D) Barry Crosier (P) SOLICITORS : Sparke Helmore (1D) Phillips Fox (2D) CATCHWORDS : DECISION : Jury dispensed with. Costs reserved

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WOOD CJ at CL

TUESDAY 24 AUGUST 1999

CW500025/97 -

MICHAEL FRANCIS NANKERVIS v ULAN COAL MINES LIMITED AND ANOTHER

JUDGMENT 1 HIS HONOUR: The plaintiff has, in this matter, sought orders that the jury be dispensed with, and that the cross-claims, brought by the two defendants against each other, be heard separately from the action that the plaintiff has brought against them. 2 The proceedings concern a claim for damages for personal injuries sustained by the plaintiff on 2 February 1997, when a wheel rim fitted to a shuttle car, used in the coal mine of the first defendant, failed, causing him to be struck by a steel flange. 3 The plaintiff has framed his claim against the first defendant for breach of the duty of care owed to him by that party as his employer, both in tort and pursuant to a term implied in the contract of employment. 4 The claim against the second defendant is brought for breach of the duty of care it is alleged to have owed, as a party engaged under a contract with the first defendant, to supply, service and carry out repairs to the tyres and wheels fitted to the machinery used by the first defendant in its mine. 5 The first defendant has pleaded that the plaintiff is guilty of contributory negligence. The second defendant has not pleaded such defence. Each defendant, however, has placed its own liability in issue. It is understood, from the submissions addressed on the motion this morning, that each seeks to pass the blame to the other. In that regard the first defendant has foreshadowed that it proposes to argue that the non delegable duty of care, vested in it as employer, was discharged by engaging an experienced contractor in the relevant area. 6 The first defendant has brought a cross-claim against the second defendant for contribution or indemnity. Such claim is pursued upon the basis of the alleged liability of that party as a tort feasor under the Law Reform (Miscellaneous Provisions) Act 1946. Additionally, reliance is placed upon an express indemnity provision said to arise by contract, as well as upon alleged breaches of terms as to performance, fitness of purpose and merchantability, either arising expressly or impliedly under terms of the contract, or under section 70(1)(i) and section 70(1)(ii) of the Trade Practices Act. 7 The second defendant has, similarly, brought a cross-claim for contribution or indemnity against the first defendant, based upon the Law Reform (Miscellaneous Provisions) Act 1946. 8 In the result, a jury would be expected to consider issues concerning liability: (a) so far as the plaintiff seeks to establish negligence against the first and second defendants respectively as an employee, and as a person to whom the neighbour principle extends; (b) so far as the plaintiff seeks to establish against the first defendant a breach of his contract of employment; (c) so far as the first defendant seeks to establish against the second defendant its negligence and its breach of express terms, as well as of terms said to have been implied into the contract between those parties; (d) so far as the second defendant seeks to establish against the first defendant its negligence; (e) so far as the first defendant seeks to establish contributory negligence on the part of the plaintiff and (f) so far as the two defendants seek to apportion responsibility between themselves. 9 Apart from the complexity inherent in the several questions thus raised, the jury would also be expected to make an assessment of damages on two separate bases including: (a) those arising at Common Law as modified by the Workers' Compensation Act, so far as the plaintiff's claim is brought against the first defendant for breach of the duty of care said to arise, either at general law or under contract, and (b) those arising at Common Law, so far as the plaintiff's claim is brought against the second defendant. 10 Threshold questions, and somewhat complex calculations will arise in relation to damages to be assessed under the workers' compensation legislation. Additionally, some threshold questions of fact will need to be answered by the jury, dependent upon which findings, directions of law would then need to be given as to the implication of terms into the contract alleged by the first defendant, upon the basis of which it claims contribution or indemnity. 11 The case is one in which some issues will fall for determination upon expert evidence as to the cause of the accident, and as to the precautions available, in relation to the proper fitting of tyre and wheel components to heavy machinery of the kind involved. This would extend to an examination of the extent to which the first defendant could properly discharge its duty of care by engaging external experts. 12 The problems are somewhat complicated by the contributory negligence defence, particularly having regard to the recent decision of the High Court in Astley v Austrust Ltd (1999) HCA 6, which might lead to a different assessment of damages against the first defendant, compared to the assessment against the second defendant dependent upon whether the plaintiff's claim was made out in tort or contract or both. A flow on in relation to the cross-claims could be quite significant, having regard to the potential different bases for liability and apportionment between the two defendants. 13 The case is one, I observe, where a jury has been sought by the first defendant. The proceedings were included in a circuit list at the Dubbo sittings of the Court for which the 1999 court calendar allowed one week. The defendants informed the registrar at a callover that as a jury trial, in which all matters were at issue, the likely estimate for hearing would be ten days. The matter is listed in the September 1999 sittings of the Court at Dubbo and because of its position in the list it could confidently be expected to be reached early in those sittings. In accordance with the listing practice, however, a case of ten days duration would normally be regarded as a long case, and transferred to Sydney to be included in the long cases list. Upon that basis, if these proceedings were to be transferred because of that estimate, then the plaintiff would be deprived of all opportunity for a hearing this year. 14 The defendants have properly placed before me the fact that the plaintiff is back at work and, therefore, is not suffering an immediate financial loss. That is a matter which I properly take into account, but it does not provide a total answer to the problem identified since, absent a hearing, the plaintiff would be deprived of an early opportunity to pursue his claim for general damages. 15 The discretion which arises to discharge a jury is not at large. The principles have been recently discussed in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 and more recently in Forbes Service Memorial Club Limited v Hodge, Court of Appeal NSW, 8 March 1995. The effect of the decision of Pambula District Hospital is to exclude, as irrelevant, considerations concerning general listing requirements and management by the Court of its list. 16 An application such as the present needs to be confined to circumstances peculiar to the instant case. I observe in this regard that it would be inappropriate on the state of current authority to lay down, as a general principle, that cases included in circuit lists of the Court should proceed without a jury. That would be a significant erosion of the right to a jury trial and, as a general principle, it would be an inappropriate basis from which to commence. I place that question, accordingly, to one side and confine myself to the particular circumstances of the present case. 17 I observe that apart from the experts who are to be called on the issue of liability, there are a number of medical practitioners, six in number, who the plaintiff expects to call, some of whom are treating doctors from the Mudgee or Lithgow area. As a jury trial, their personal attendance will be required, whereas in a non jury trial their evidence could be taken, at least in the first instance, by the tender of their reports. If the case has to be moved to Sydney because of its length, they will be inconvenienced and the costs of the trial will be increased. 18 I am satisfied, having regard to the multiple issues involved in this case, that the length of the trial would be significantly increased if it were to proceed as a jury trial, with the consequence that the fixture will almost certainly have to be vacated and the matter either transferred to Sydney or, subject to other considerations, given a special fixture at some later time. That could not be achieved this year and, as a consequence, the plaintiff would suffer delay on that account. 19 However, the more significant and critical aspect, so far as I am concerned, is the complexity of the issues which arise. I am satisfied that the nature of those issues when combined is such that the matter could not be conveniently or properly determined by the jury. Accordingly, I make an order dispensing with the jury. 20 I am not persuaded that if the matter proceeds without a jury it is necessary to hive off the questions of indemnity or contribution. It appears to me that they are intrinsically linked to the plaintiff's case, although some additional evidence might be expected to be called in relation to the circumstances in which any contractual arrangement between the parties were established. Those matters, I believe, can be conveniently heard during the Dubbo sittings in a non jury trial. Accordingly, I decline to separate the issues arising on the cross-claims. 21 The orders of the Court, accordingly, are the jury will be dispensed with and I will reserve the costs. **********