Macey v Macquarie Generation & Anor [2009] NSWCA 79

New South Wales Court of Appeal

CITATION: Macey v Macquarie Generation & Anor [2009] NSWCA 79

HEARING DATE(S): 9 December 2008

JUDGMENT DATE: 9 April 2009

JUDGMENT OF: Beazley JA at 1; Campbell JA at 55; Gyles AJA at 57

DECISION: 1. Appeal dismissed with costs; 2. Cross-appeal dismissed with costs.

CATCHWORDS: JUDGES AND COURTS - challenge to inferences and findings of trial judge – inferences and findings open to trial judge - appellate inference not required - TORTS - negligence- duty of care owed by occupier- duty to provide instructions to workers – duty owed where instructions might reasonably be thought to be required to secure workers from danger – instructions not required in this case - TORTS - negligence- generalised duty of care- test for foreseeability of risk – simple uncomplicated operations by an employee within the normal system of work – content of duty in this case did not include the provision of instructions - COSTS – offer to fully indemnify party with respect to liability and costs – offer rejected – circumstances in which offer rejected unreasonable – costs not awarded to party who rejected offer

LEGISLATION CITED: Occupational Health and Safety Act 2000 Supreme Court Act 1970, s 75A

CATEGORY: Principal judgment

Fox v Percy [2003] HCA 22; 214 CLR 118 Imbree v McNeilly [2008] HCA 40; (2008) 248 ALR 647 CASES CITED: O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40