Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 52

District Court New South Wales

Medium Neutral Citation: Kemble v Gate Gourmet Services Pty Ltd [2012] NSWDC 52 Hearing dates: 5, 6, 7 March 2012 and 26 March 2012 (written submissions) Decision date: 24 April 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff in the sum of $294,453.93. (2) Pursuant to s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), liability for payment of the judgment sum be apportioned 90% against the first defendant and 10% against the second defendant. (3) The defendants' cross-claims otherwise dismissed. (4) The parties are to bring in short minutes of order reflecting the amounts payable by each of the first and second defendant in accordance with my findings as to apportionment of liability between them. (5) Defendants to pay the plaintiff's costs. (6) Liberty to apply, and to restore the matter for any application concerning costs, including any request by the defendants to apportion costs as between the defendants and/or in relation to the order for costs in favour of the plaintiff. (7) Exhibits retained for 28 days. Catchwords: TORT - negligence - employee of labour hire firm injured by falling trolley while working at occupier's premises - plaintiff sues employer (labour hire firm) and occupier - duty and breach of duty issues - evidence - failure of occupier to produce documents in answer to subpoena and notice to produce - quantum - apportionment between labour hire firm and occupier pursuant to s 151Z Workers Compensation Act 1987 (NSW) Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D and 15 Civil Procedure Act 2005, s 56 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Workers Compensation Act 1987 (NSW), ss 90 and 151Z(2) Cases Cited: Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 Arnott v Choy (2010) 56 MVR 390 Attard v Hore [2002] QSC 437 Brogan v McGeary (1995) Aust Torts Reps 81-342 Clarence Valley Council v MacPherson [2011] NSWCA 422 Clarence Valley Council v MacPherson (District Court of New South Wales, Flannery DCJ, 16 March 2011) El-Helou v Smith [2009] NSWSC 741 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 Mahony v Watson [2003] NSWCA 259 Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 Merkuloff v Yalisheff [2003] NSWSC 1183 Miller v Galderisi [2009] NSWCA 353 Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 Owners - Strata Plan 156 v Gray [2004] NSWCA 304 Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274 Palavi v Radio 2UE Sydney Pty Ltd [2010] NSWDC 332 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Strong v Woolworths Ltd [2012] HCA 5 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 Wray v Wray [2007] NSWSC 164 Texts Cited: - Category: Principal judgment Parties: Plaintiff: Harry John Kemble First Defendant: Gate Gourmet Services Pty Ltd Second Defendant: Blue Collar Airport Services Pty Ltd Representation: Plaintiff: Mr D Campbell SC / Mr T Meakes First Defendant: Mr S Kettle Second Defendant: Mr C Robertson Plaintiff: Bryan Gorman & Co First Defendant: Norton White Lawyers Second Defendant: Stephen Lee Legal File Number(s): 2010/99877 Publication restriction: None