Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098

Supreme Court New South Wales

Medium Neutral Citation: Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098 Hearing dates: 8/8/11, 9/8/11, 10/8/11, 11/8/11, 12/8/11 Decision date: 16 September 2011 Jurisdiction: Civil Before: HOEBEN J Decision: Plaintiff succeeded in establishing liability in negligence against both defendants. Short Minutes setting out damages to be filed. Catchwords: NEGLIGENCE - liability of occupier and employer - content of duty of care in each case - breach of duty of care - whether owner and operator of farm breached duty of care to plaintiff employee of contractor by failing to mark a hazard on one of its internal roads - plaintiff driving vehicle which collided with culvert and turned over - foreseeability of risk - adequacy of response by occupier of farm - NEGLIGENCE - breach of duty of care by employer - non-delegable duty of care - breach of duty by occupier of farm became breach of duty by employer. NEGLIGENCE - causation - whether failure to properly mark road hazard caused accident - whether speed of vehicle caused accident - whether plaintiff keeping a proper lookout. CONTRIBUTORY NEGLIGENCE - whether failure to wear seatbelt made any contribution to plaintiff's injuries. CROSS-CLAIMS - apportionment of liability between occupier of farm and employer - whether employer entitled to recovery from owner of farm of compensation paid to plaintiff - section 151Z(1)(d) Workers Compensation Act 1987 - terms of contract between occupier of farm and employer - whether employer breached terms of contract - if employer breached terms of contract whether indemnity clause effective to pass onto employer the farm owner's liability to pay damages to plaintiff. DAMAGES - calculation of damages against farm owner in accordance with Civil Liability Act 2005 - calculation of damages against employer pursuant to Workers Compensation Act 1987 - paucity of evidence as to economic loss - what approach to be followed by Court - plaintiff's entitlement to damages against farm owner to be adjusted by reference to s151Z(2) Workers Compensation Act 1987. Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987 Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48, (2009) 239 CLR 420 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479 at 488 Burton v Brooks [2011] NSWCA 175 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114 Husher v Husher & Anor (1999) HCA 47, (1999) 197 CLR 138 I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486 Kulh v Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375 Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270 Lepore v State of New South Wales & Anor [2001] 52 NSWLR 420 Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; (2004) 41 MVR 235 Nominal Defendant v Lane [2004] NSWCA 405 Penrith City Council v Parks [2004] NSWCA 201 Roche Mining Pty Ltd v Graeme Wayne Jeffs [2011] NSWCA 184 State of New South Wales v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31 TNT Australia Pty Limited v Christie & Ors; Crown Equipment Pty Limited v Christie & Ors; Manpower Services (Aust) Pty Limited v Christie & Ors [2003] NSWCA 47; (2003) 65 NSWLR 1 at [47] Category: Principal judgment Parties: Rodney John Williams - Plaintiff Twynam Agricultural Group Pty Ltd - First Defendant Inland Watering Pty Limited - Second Defendant Twynam Agricultural Group Pty Ltd - First Cross-Claimant Inland Watering Pty Limited - First Cross-Defendant Inland Watering Pty Limited - Second Cross-Claimant Twynam Agricultural Group Pty Ltd - Second Cross-Defendant Representation: Mr A Lidden SC/Mr PN Khandhar - Plaintiff Mr J Gracie - First Defendant Mr G Parker - Second Defendant Mr J Gracie - First Cross-Claimant Mr G Parker - First Cross-Defendant Mr G Parker - Second Cross-Claimant Stacks/The Law Firm - Plaintiff Lee & Lyons - First Defendant Moray & Agnew - Second Defendant Lee & Lyons - First Cross-Claimant Moray & Agnew - First Cross Defendant Moray & Agnew - Second Cross-Claimant Lee & Lyons - Second Cross-Defendant File Number(s): 2009/297953