DARKE v EL DEBAL; EL DEBAL v NETWORK WELDING PTY LTD (IN LIQ) ;EL DEBAL v KARI & GHOSSAYN PTY LTD [2006] NSWCA 86

Reported Decision : 153 IR 73

New South Wales Court of Appeal

CITATION: DARKE v EL DEBAL; EL DEBAL v NETWORK WELDING PTY LTD (IN LIQ) ;EL DEBAL v KARI & GHOSSAYN PTY LTD [2006] NSWCA 86

HEARING DATE(S): 27, 28 March 2006

JUDGMENT DATE: 21 April 2006

JUDGMENT OF: Mason P at 1; Santow JA at 105; McColl JA at 106

DECISION: New trial as to some issues

CATCHWORDS: APPEAL AND NEW TRIAL – Improper admission or rejection of evidence – Failure to consider all relevant evidence – Decided points not put by counsel – Failure to address all pleaded causes of action – Failure to give reasons. - NEGLIGENCE – Employer's duty of care – Duty to provide safe system of work – Where employer typically hires out the services of its employees – Employer to acquaint itself with the system of work in the place to which its sends its employees. - NEGLIGENCE – Construction safety – Requirement that any person who directly or by their servants or agents carries out construction work owes a duty of care – May be more than one person owing duty – Head contractor and subcontractor jointly liable – Construction Safety Regulations 1950, regs 73 and 80. - NEGLIGENCE – Motor vehicle accidents – Damages – Non-economic loss – Recoverable only where degree of permanent impairment actually greater than ten per cent – Whether recoverable if degree of permanent impairment potentially greater than 10 per cent – Medical assessor's certificate under motor accidents compensation legislation – Provides conclusive evidence as to whether degree of permanent impairment greater than 10 per cent – Whether evidence as to potential degree of permanent impairment certifiable – Motor Accidents Compensation Act 1999, s 61(2)(a). - NEGLIGENCE – Motor vehicle accidents – Damages – Non-economic loss – Medical assessor's certificate under motor accidents compensation legislation – Provides conclusive evidence as to matters certified regarding degree of permanent impairment – Rejection where certificate not made in circumstances affording procedural fairness to a party – Where certifying doctor fails to consider plaintiff's description of injuries – Procedural fairness concerned with process not outcomes – No basis for rejecting certificate established – Motor Accidents Compensation Act 1999, s 61(4).(D)