Estate of the Late M T Mutton by its Executors & R W Mutton trading as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340

New South Wales Court of Appeal

CITATION: Estate of the Late M T Mutton by its Executors & R W Mutton trading as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340

HEARING DATE(S): 14/11/07

JUDGMENT DATE: 7 December 2007

JUDGMENT OF: Spigelman CJ at 1; Hodgson JA at 52; Ipp JA at 65

DECISION: Appeal dismissed with costs.

CATCHWORDS: TORTS – negligence – duty of care – breach – accident which occurred at a place of work under the control of a third party (the appellants) – absence of control by respondent employer over working environment – whether, in the light of this, the respondent failed to take reasonable steps to avoid exposing its employees to unnecessary risks of injury and to provide them with a safe system of work - TORTS – breach of statutory duty – duties of employers to employees – duty to eliminate or, if not reasonably practicable, control risks to employees – risk control measures relating to working space – whether the respondent failed to ensure the provision of sufficient working space to allow persons to work safely – Occupational Health and Safety Act 2000 (NSW), ss 8, 10, 12 and Occupational Health and Safety Regulation 2001 (NSW), cll 11, 45(a) discussed – relationship between cl 11 (elimination or control of risks) and risk control measures set out in Pt 4.3 of the Occupational Health and Safety Regulation - TORTS – breach of statutory duty – duties of employers to employees – duties relating to use of plant – Occupational Health and Safety Regulation, cl 136(3)(d) – duty to control the risk of entanglement in plant with moving parts in situations where it is not possible for the employer to eliminate the risk – whether provision triggered – question of fact in this case as to whether it was possible for the respondent to eliminate the risk - TORTS – breach of statutory duty – defences – statutory defences – Occupational Health and Safety Act, s 28 – statutory defence available in respect of criminal prosecutions for breach of cl 11 of the Occupational Health and Safety Regulation by failing to comply with cl 45(a) – unresolved question as to whether s 28 also amounts to a restriction of any civil liability that may be imposed on an employer by s 32 for breach of a statutory duty - COSTS – apportionment – extension of right to contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act to costs – question as to whether the respondent should contribute to the costs required to be paid to the injured plaintiff by the appellants in the light of the fact that the respondent would not have been ordered to pay the injured plaintiff's costs had the injured plaintiff sued the respondent – James Hardie and Co Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679 distinguished on the facts – consideration of general rule as to costs in work injury proceedings – Workers Compensation Regulation 2003 (NSW), cl 91 – exceptions to general rule under cll 89, 90(1) and (2) - WORKERS' COMPENSATION – contribution – Workers Compensation Act 1987 (NSW), s 151Z(2)(d) – whether the assessment of damages by which the amount of contribution under s 151Z(2)(d) is to be calculated must be proportionate to the relevant heads of damage making up the damages which the party seeking a contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act is liable to pay the injured plaintiff. D -