Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31 Hearing dates: 11 February 2013 Decision date: 26 February 2013 Before: McColl JA (at [1]); Basten JA (at [2]); Barrett JA (at [3]) Decision: 1.Grant to the second respondent leave to file its notice of cross-appeal. 2. Appeal allowed. 3. Cross-appeal allowed. 4. Set aside the judgment and orders of the District Court of 15 December 2011. 5. In lieu thereof order: (a) Judgment for the first defendant against the plaintiff. (b) Judgment for the second defendant against the plaintiff. (c) That the plaintiff pay the costs of the first defendant and the second defendant. 6. Order that the second respondent (cross-appellant) pay the costs of the other parties of the motion seeking leave to file a notice of cross-appeal. 7. Order that the first respondent pay the costs of the other parties of both the appeal and the cross-appeal. 8. Order that the first respondent, if qualified, have a certificate under the Suitors' Fund Act 1951. [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 - workplace injury - employee of labour hire company lost footing on stairs when moving bulky office furniture at direction of host employer - content of duty of care - whether warning and instruction by host employer required - commonplace task - no unusual or unexpected risks - no special precautions required. Legislation Cited: Civil Liability Act 2002, s 5B Workers Compensation Act 1987, Part 7 Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2003) 239 CLR 420 Electric Power Transmission Pty Limited v Cuiuli [1961] HCA 3; (1961) 104 CLR 177 O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 Pritchard v Trius Constructions Pty Ltd [2011] NSWSC 749 Seage v State of New South Wales [2008] NSWCA 328 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Category: Principal judgment Parties: Transpacific Industrial Solutions Pty Limited - Appellant Kevin Ernest Phelps - First Respondent Workpac Newcastle Pty Limited - Second Respondent Representation: J E Maconachie QC/R G Gambi - Appellant B M J Toomey QC/G R Graham - First Respondent P M Morris SC - Second Respondent McCabe Terrill Lawyers Pty Ltd - Appellant Philip Watson Pty Ltd - First Respondent Moray & Agnew - Second Respondent File Number(s): 2012/11942 Decision under appeal Date of Decision: 2011-11-30 00:00:00 Before: North DCJ File Number(s): 2010/354709