Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167

Appeal Outcome: Special leave dismissed with costs by the High Court, 12 February 2010 s177/2009

New South Wales Court of Appeal

CITATION: Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 and 23 February 2009

JUDGMENT DATE: 26 June 2009

JUDGMENT OF: Beazley JA at 1; Ipp JA at 113; Basten JA at 128

(1) Allow the appeal and set aside orders (2)-(6) made by Hungerford ADCJ in the District Court on 9 May 2008. (2) In lieu thereof: (a) enter judgment for the second defendant against the plaintiff, and DECISION: (b) order the plaintiff to pay the second defendant's costs of the proceedings, other than those attributable to the cross-claims. (3) Order the first respondent (Mr Liddiard) to pay the appellant's costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent. (4) Otherwise make no order as to the costs of the appellant and the second respondent in respect of the appeal. (5) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW).

CATCHWORDS: LIMITATION OF ACTIONS – interpretation of the Limitations Act 1969, s 50C and s 50D – date when a cause of action is "discoverable" – whether a person has to know the facts necessary to establish the fault of the defendant or has to know that the defendant is, as a matter of law, liable to pay damages - EVIDENCE – admissibility – evidence given by a manager – whether manager can give evidence of the tasks required to be performed as part of her/his employment - EVIDENCE – admissibility – evidence sought to be adduced from manager as to her/his employer's legal liability – objection by employer – whether manager's ostensible authority extends to making an admission as to her/his employer's legal liability - TORTS – negligence – duty of care – labour hire like arrangement between defendant and employer – whether defendant owes a hired labourer a duty of care – whether defendant breached its duty - TORTS – negligence – duty of care – whether occupier liable for injury to employee of independent contractor – degree of control over or co-ordination of employee's activities – whether existence of obligation to ensure safe system of work - TORTS – negligence – breach of duty – whether any steps required to render system of work safe – whether steps to ensure safety would have ameliorated risk of injury - TORTS – negligence – duty of care – labour hire like arrangement between defendant and employer – breach of respective duties by defendant and employer – apportionment of liability