Nationwide News Pty Ltd v Naidu & Anor; ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377

Reported Decision: 71 NSWLR 471

New South Wales Court of Appeal

CITATION: Nationwide News Pty Ltd v Naidu & Anor; ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 and 31 July 2007

JUDGMENT DATE: 21 December 2007

JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 94; Basten JA at 363

DECISION: The orders are; (1) In matter No. CA 40182 of 2006 (appeal by Nationwide News Pty Ltd); (i) dismiss the appeal; (ii) dismiss the cross-appeal of ISS Security Pty Ltd; (iii) order the Appellant to pay the costs of the Respondents of the appeal; (2) In matter No. CA 40198 of 2006 (appeal by ISS Security Pty Ltd); (i) allow the appeal and set aside the orders of Adams J entered on 12 May 2006; (ii) in place thereof, make the following orders; (a) judgment for the plaintiff against the second defendant, Nationwide News Pty Ltd; (b) order the second defendant to pay the plaintiff $1,946,189.40, such judgment to have effect from 12 May 2006; (c) order the second defendant to pay the plaintiff's costs of the proceedings in the Common Law Division on an ordinary basis up to 26 March 2004 and thereafter on an indemnity basis; (d) order the plaintiff to pay the first defendant's costs of the proceedings in the Common Law Division; (3) Dismiss the cross-appeal of Nationwide News Pty Ltd; (4) Order the cross-appellant to pay the costs of the cross-respondents to the cross-appeal; (5) Order the Respondents to pay the Appellant's costs of the appeal; (6) Grant the First Respondent (Mr Naidu) a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the costs of the appeal.

CATCHWORDS: CONTRACTS - General contractual principles - Construction and Interpretation of Contracts - Implied terms - Terms essential to enable performance - Employment contract - Whether trial judge erred in finding additional implied terms - DAMAGES - Measure and remoteness of damages in actions for tort - Mental and nervous shock - Failure to provide safe place of work - Whether double compensation for breach of contract and tort - DAMAGES - Exemplary damages - Focus upon conduct of wrongdoer - Whether trial judge erred in awarding exemplary damages - s 151M of Workers Compensation Act 1987 and Pt 33 r 8A of Supreme Court Rules 1970 - whether trial judge erred in awarding interest - LIMITATION OF ACTIONS - Contracts, torts and personal actions - Personal injury cases - Workers Compensation Act 1987 s 151D - Whether trial judge erred in granting leave to bring proceedings - Fairness underlying principle as to whether to allow action - TORT - Negligence - Essentials of action for negligence - Where nervous shock or mental disorder - Common law - Reasonable foreseeability of damage - As between employer and employee - Workplace bullying and racial taunts - TORT - Negligence - Essentials of action for negligence - Duty of Care - Special relationships and duties - Employer and Employee - Where employee is subcontracted to workplace where bullying occurs - Third party's duty to provide safe place and safe system of work - TORT - Negligence - Liability for other's negligence - Contractors - Direct liability of employer for actions of site supervisor - TORT - Negligence - Apportionment of responsibility and damages - Liability of employer and contracting party - Whether trial judge erred in apportionment - TORT - Negligence - Vicarious liability - Sufficient connection with duties and responsibilities as employee - Site supervisor bullied and intimidated contractor under his control - Whether conduct in course of employment - TORT - Intentional tort - Mental and nervous shock - Requires intention or reckless indifference