TARABAY v LEITE [2008] NSWCA 259

New South Wales Court of Appeal

CITATION: TARABAY v LEITE [2008] NSWCA 259

HEARING DATE(S): 21 August 2008

JUDGMENT DATE: 23 October 2008

JUDGMENT OF: Allsop P at 1; Basten JA at 2; Bell JA at 79

(1) Appeal and cross-appeal each allowed in part.

(2) Judgment given in the District Court on 24 September 2007 set aside and in lieu thereof make the following orders:

(a) give judgment for the plaintiff in the amount of $209,170; DECISION: (b) order the defendants to pay the plaintiff's costs of the trial.

(3) Order the appellants to pay two-thirds of the respondent's costs in this Court.

(4) Grant the appellants a certificate under the Suitors' Fund Act 1951 (NSW), with respect to the costs of the cross-appeal.

(5) Grant liberty to apply in accordance with the terms set out in [77] of the reasons for judgment.

CATCHWORDS: APPEALS – contingent finding on apportionment of liability – purpose of additional findings – status of contingent findings on appeal – whether Court of Appeal should reconsider apportionment and reach its own conclusion – principle of restraint - CONTRIBUTORY NEGLIGENCE – challenge to factual finding leading to conclusion of contributory negligence – whether plaintiff's vision obscured by plywood – evidence in chief and cross-examination of plaintiff taken out of context - DAMAGES – domestic assistance – gratuitous attendant care services – threshold for damages – commercially provided care services – whether plaintiff required future domestic assistance – reliance on medical reports – Civil Liability Act 2002 (NSW) s 15(3) - DAMAGES – recovery against third party (head contractor), not against employer – adjustment of award on account of culpability of employer – calculation of reduction of overall liability of head contractor – apportionment of liability between employer and head contractor as joint tortfeasors – whether employer's responsibility greater than head contractor's responsibility – where employer has limited control over building site – where head contractor responsible for maintaining reasonably safe site – Workers Compensation Act 1987 (NSW) s 151Z(2) - WORKERS COMPENSATION – recovery against third party (head contractor), not against employer – adjustment of award on account of culpability of employer – calculation of reduction of overall liability of head contractor – Workers Compensation Act 1987 (NSW) s 151Z(2) - WORDS & PHRASES – "apportionment" – "gratuitous attendant care services" – "principle of restraint"