Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400 Hearing dates: 6 August 2012 Decision date: 11 December 2012 Before: McColl JA (at [1]); Barrett JA (at [2]); Preston CJ of LEC (at [188]) Decision: 1. Appeal dismissed. 2. Order that the appellant pay the costs of both the first respondent and the second respondent. 3. Direct that any application by the appellant for setting aside or variation of the costs order be made in accordance with the rules. [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: NEGLIGENCE - duty of care - breach of duty - workplace accident - whether facts found by judge adequate to support findings of negligence and decisions on apportionment between tortfeasors and absence of contributory negligence - NEGLIGENCE - damages - future economic loss - whether findings on likely time of return to work and quantification of lost earnings supportable - whether award for non-economic loss should be increased to reflect current prescribed damages - EVIDENCE - workplace accident report - no evidence of authorship - whether report admissible - whether admitted "only against" one defendant Legislation Cited: Civil Liability Act 2002 Evidence Act 1995 Law Reform (Miscellaneous Provisions) Act 1946. Cases Cited: Australian Securities and Investments Commission v Vines [2003] NSWSC 995; (2003) 48 ACSR 282 Clarence Valley Council v Macpherson [2011] NSWCA 442 House v R [1936] HCA 40; (1936) 55 CLR 499 Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 Marsland v Andjelic (1993) 31 NSWLR 162 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Category: Principal judgment Parties: Eire Contractors Pty Limited - Appellant Luke O'Brien - First Respondent Reed Constructions Australia Pty Limited - Second Respondent Representation: R S Sheldon SC - Appellant P J Doherty SC/P Biggins/D C Morgan - First Respondent J E Sexton SC/C A Mulvey - Second Respondent McCabe Terrill Lawyers - Appellant Whitelaw McDonald - First Respondent Kennedys Lawyers - Second Respondent File Number(s): 2010/134538 Decision under appeal Citation: No citation Date of Decision: 2011-10-07 00:00:00 Before: Colin O'Connor DCJ File Number(s): 2010/134538