ENSEC PTY. LIMITED (In liquidation) . HAWKINS & ANOR. [2004] NSWCA 243

New South Wales Court of Appeal

CITATION : ENSEC PTY. LIMITED (In liquidation) . HAWKINS & ANOR. [2004] NSWCA 243 HEARING DATE(S) : 29/04/2004 JUDGMENT DATE : 16 July 2004

JUDGMENT OF : Beazley JA at 1; Hodgson JA at 41; Ipp JA at 43 DECISION : 1. Appeal allowed in part and dismissed in part; 2. Cross-Appeal allowed in part and dismissed in part; 3. Set aside orders 1, 5 and 7 made by the trial judge; 4. Verdict and judgment for the plaintiff/first respondent against the defendant/second respondent in the sum of $259,318.82; 5. Order the cross-defendant/appellant to indemnify the cross-claimant/second respondent in respect of the verdict in favour of the plaintiff/first respondent against the cross-appellant/second respondent; 6. Order the cross-defendant/appellant to pay to the cross-defendant/second respondent the costs which the cross-defendant/second respondent is to pay to the plaintiff/first respondent pursuant to order 2 made by the trial judge; 7. The appellant is to pay the first and second respondent's costs of the appeal and of the cross-appeal.

CATCHWORDS : NEGLIGENCE - Whether it was open to the trial judge to make a finding of negligence based upon "common experience" in the absence of evidence - Engagement of an expert independent contractor by party - Occasional attendance of supervisor during work carried out by independent contractor - Nature of liability to employee. - REASONS FOR JUDGMENT - Adequacy of reasons - Whether failure to give adequate reasons necessarily leads to a new trial. - LIABILITY - Apportionment - Law Reform (Miscellaneous Provisions) Act 1946 s. 5(c) - Operation - Proportion of contribution or indemnity is a matter of discretion for the Court. - EMPLOYER/EMPLOYEE - Non-delegable duty of care. LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Beale v. G.I.O (1997) 48 NSWLR 430 CASES CITED : Rolls Royce v. James Hardie (2001) 53 NSWLR 626 Soulemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247 ENSEC PTY. LIMITED (In liquidation) (Appellant) PARTIES : Sandra Alice Hawkins (First Respondent) Penrith Rugby League Club Limited (Second Respondent/Cross Appellant) FILE NUMBER(S) : CA 40531/03 S. Donaldson SC/P.M. Morris (Appellant) COUNSEL : W. Kearns SC/P. Menary (First Respondent) A.D.M. Hewitt (Second Respondent/Cross Appellant) Moray & Agnew (Appellant) SOLICITORS : Smythe & Mallam (Respondent) Cutler Hughes & Harris (Second Respondent/Cross Appellant)