CONCRITE PTY LTD v ROGERSON [2002] NSWCA 310

New South Wales Court of Appeal

CITATION : CONCRITE PTY LTD v ROGERSON [2002] NSWCA 310 FILE NUMBER(S) : CA 40978/01 HEARING DATE(S) : 10 September 2002 JUDGMENT DATE : 18 September 2002

PARTIES : Concrite Pty Ltd - Appellant Bruce Rogerson - Respondent JUDGMENT OF : Handley JA at 1; Sheller JA at 2; Young CJ in Eq at 27

LOWER COURT JURISDICTION : District Court LOWER COURT 4578/00 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER :

COUNSEL : J D Hislop QC/N C Chen - Appellant P Webb QC/S Stewart- Respondent SOLICITORS : Sparke Helmore - Appellant Rishworth Dodd & Co - Respondent CATCHWORDS : NEGLIGENCE - causation - internal inconsistencies in trial Judge's reasoning - many contributing factors - misapplication of onus of proof - failure to give reasons - assessment of damages - new trial ordered LEGISLATION CITED : Workers Compensation Act 1987 Workers Compensation (Benefits) Amendment Act 1991 CASES CITED: Purkess v Crittenden (1965) 114 CLR 164 Watts v Rake (1960) 108 CLR 158 DECISION : 1. Appeal allowed; 2. Set aside the verdict and judgment for the respondent given and entered by her Honour Judge Gibb on 26 November 2001; 3. Remit the proceedings to the District Court for a new trial limited to the question of damages; 4. Judgment for the appellant by way of restitution in the amount of $141,000 paid by the appellant to the respondent as a term of the stay of execution of the judgment together with interest thereon from the date of payment to the date of repayment; 5. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 6. The costs of the first trial be in the discretion of the Judge who hears the new trial.