P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167 Hearing dates: 18 February 2013 Decision date: 12 June 2013 Before: Barrett JA (at [1]); Hoeben JA (at [103]); Tobias AJA (at [106]) Decision: 1. Grant leave to the appellants to amend their notice of appeal by adding the following ground of appeal: "The primary judge erred in the exercise of his discretionary assessment that Kaybron No 24 Pty Ltd ought to bear 10 per cent of the culpability involved in the accident in question." 2. Appeal allowed. 3. Set aside the judgment and orders of the District Court. 4. In lieu thereof, order that the District Court proceedings be dismissed with costs. 5. That the respondent pay the appellants' costs of the appeal. 6. Order that the respondent be granted a certificate under the Suitors Fund Act 1951, if qualified. [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 - workplace injury - plaintiff injured by trolley pushed by co-worker - identification of co-worker's employer - that employer was not the defendants - no vicarious liability of the defendants for negligence of the co-worker - workplace and systems controlled by the defendants - whether duty of care owed by them accordingly - whether duty breached - whether duty of care also owed by plaintiff's employer which had no control of workplace and systems - whether defendants entitled to contribution from plaintiff's employer - damages for non-economic loss - whether injury shown to meet threshold of 15 per cent of most extreme case - damages for economic loss - where causes of disability other than the workplace injury operated - whether relevant causation proved - observations on the need for evidence from treating doctors in cases of this kind Legislation Cited: Civil Liability Act 2002, ss 5B, 5D, 5E, 5Q, 15(3), 16 Workers Compensation Act 1987, s 151Z(2) Cases Cited: Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 Leighton Contractors v Fox [2009] HCA 35; (2009) 240 CLR 1 Morvatjou v Moradkhani [2013] NSWCA 157 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Stevens v Brodribb Sawmilling [1986] HCA 1; (1986) 160 CLR 15 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Category: Principal judgment Parties: P & M Quality Smallgoods Pty Limited - First Appellant Trustees of the Homebush Unit Trust - Second Appellant Leap Seng - Respondent Representation: M B Williams SC/T A Berbarian - Appellants P Menzies QC/K W Andrews - Respondent HWL Ebsworth Lawyers - Appellants NSW Compensation Lawyers - Respondent File Number(s): 2009/336435 Decision under appeal Citation: Seng v P & M Quality Smallgoods Pty Ltd & Anor [2011] NSWDC 175 Date of Decision: 2011-11-18 00:00:00 Before: Levy SC DCJ File Number(s): 2009/336435