Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 Hearing dates: 5 March 2012 Decision date: 10 May 2012 Before: Basten JA at [1] Macfarlan JA at [54] Barrett JA at [138] Decision: (1) Allow the appeal and set aside: (a) orders 1 and 5 of the orders made in the District Court on 1 April 2011, and (b) orders 1 and 2 made in the District Court on 28 April 2011. (2) In place of those orders: (a) give judgment for the cross-claimants (Izzard and Haulage) against the cross-defendant (Dunbier) on the basis that Dunbier should bear 40% of the liability for the injuries suffered by the plaintiff; (b) order that the cross-defendant pay the cross-claimants' costs of the cross-claim; (c) remit the proceedings to the District Court for it to determine the contribution recoverable by the cross-claimants from the cross-defendant, and the amount, if any, by which the judgment in favour of the plaintiff must be reduced in accordance with s 151Z(2) of the Workers Compensation Act 1987, on the basis of the material before the trial judge, subject to leave to adduce further oral evidence or cross-examination, or to tender further documents, if the judge be satisfied that such a step is necessary, given the lapse of time since the trial; (d) unless the defendants file submissions within 14 days seeking a different order, order that the TACV pay 20% of the first and second defendants' costs of the plaintiff's claim. (3) Order that the TACV pay one-third of the appellants' costs in this Court. (4) Order that the first respondent (Dunbier) pay two-thirds of the appellants' costs in this Court. (5) Direct that each of the respondents have a certificate under the Suitors' Fund Act 1951 (NSW), if not disqualified pursuant to s 6(7). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - duty of care - employer-employee relationship - employee injured whilst assisting in unloading contractor's vehicle - employer knew or should reasonably have known of risk of injury - failure to provide a safe system of work