Coregas Pty Limited v Penford Australia Pty Limited [2012] NSWCA 350

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coregas Pty Limited v Penford Australia Pty Limited [2012] NSWCA 350 Hearing dates: 18 September 2012 Decision date: 01 November 2012 Before: MEAGHER JA at [1] HOEBEN JA at [2] BERGIN CJ in EQ at [137] Decision: (1) The appeal is allowed in part. (2) The judgment that the respondent is entitled to contribution of 50 percent of the amount paid to the worker is set aside. (3) In lieu thereof, there should be judgment that the respondent is entitled to contribution of 25 percent of the amount paid by it to the worker. (4) The respondent is to pay 50 percent of the appellant's costs of the appeal. (5) Otherwise the orders made by his Honour are confirmed. [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: TORT - negligence - employee injured manoeuvring a large gas cylinder down a ramp - employee successful in claim against employer - claim for contribution by employer against supplier of gas cylinders - gas cylinders supplied in cage with ramp - whether duty of care owed by supplier of gas cylinders to employee - risk of injury reasonably foreseeable - integrated purpose built ramp invited particular method of unloading which was hazardous - duty of care found to exist - apportionment of liability between employer and supplier of gas cylinders - primary judge took into account factually incorrect consideration and failed to take into account relevant matters - need to re-assess apportionment - breach of duty of care - causation - application of "but for" test - EVIDENCE - admissibility of expert evidence - relevance of evidence - compliance with s 79(1) Evidence Act 1995 (NSW) - necessary expertise established. Legislation Cited: Civil Liability Act 2002, s 5B Evidence Act 1995, s 79(1) Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Sale of Goods Act 1923 (NSW), s 19 Workers Compensation Act, 1987 (NSW) - s 151Z(1)(d)) Cases Cited: A V Jennings Pty Ltd v Maumill (1956) 30 ALJR 100 at 101 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [103] Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [32] Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 315 Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; 96 CLR 18 at 24 Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 Kondis v State Transport Authority [984] HCA 61; 154 CLR 672 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 McPherson's Limited v Eaton and Ors [2005] NSWCA 435; 65 NSWLR 187 Neill v NSW Fresh Food & Ice Pty Limited [1963] HCA 4; 108 CLR 362 Nelson v John Lysaght (Australia) Ltd [1975] HCA 9; 132 CLR 201 Oxley County Council v MacDonald [1999] NSWCA 126 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85 Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 Roche Mining Pty Ltd v Graeme Wayne Jeffs [2011] NSWCA 184 Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267 Tarabay v Leite [2008] NSWCA 259 Category: Principal judgment Parties: Coregas Pty Limited - Appellant Penford Australia Pty Limited - Respondent Representation: Counsel: Mr CT Barry QC - Appellant Mr JE Maconachie QC/Mr PN Khandhar - Respondent Solicitors: Moray & Agnew - Appellant DLA Piper Australia - Respondent File Number(s): 2010/140283 Decision under appeal Date of Decision: 2011-09-30 00:00:00 Before: Lakatos SC DCJ File Number(s): 2010/140283