Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345 Hearing dates: 2 September 2014 Decision date: 13 October 2014 Before: Meagher JA at [1]; Barrett JA at [2]; Emmett JA at [76] Decision: 1. Appeal allowed in part. 2. Cross-appeal dismissed. 3. Direct that the parties within fourteen days bring in agreed short minutes of orders varying the orders made in the Common Law Division on 10 February 2014 in such manner as is necessary to reflect a 75 per cent / 25 per cent apportionment of responsibility between the first respondent and the second respondent consistently with the reasons of this Court 4. Costs of the appeal brought by notice of appeal filed on 13 February 2014 are reserved for future decision. 5. Direct that the parties promptly exchange written submissions (limited, in each case, to three pages) on the orders that should be made with respect to the costs of the appeal brought by notice of appeal filed on 13 February 2014 and that all such submissions be filed within fourteen days. 6. The cross-respondents' costs of the cross-appeal brought by notice of cross-appeal filed on 26 May 2014 be paid by the cross-appellant. [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 - worker employed by second respondent injured when unloading pantechnicon after arrival at place of employment - vehicle packed by first respondent before departure - two of three bars used to restrain load were not installed before departure - finding of negligence by first respondent not challenged on appeal - worker challenges finding of negligence by second respondent employer - CONTRIBUTION BETWEEN TORTFEASORS - where primary judge held respondents equally responsible - failure to recognise that predominant responsibility rested with the first respondent - CONTRIBUTION BETWEEN TORTFEASORS - whether burden of costs ordered against first respondent in favour of worker should have been regarded as subject to contribution to be made by second respondent employer - relevance of legislative provisions precluding costs orders as between employer and employee - whether first respondent should be affected indirectly by such provisions Legislation Cited: Civil Liability Act 2002 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Workers Compensation Act 1987 (NSW) Workers Compensation Regulation 2010 (NSW) Cases Cited: Ace-Semi Trailer Sales Pty Ltd v Zurich Australia Insurance Ltd [2009] NSWCA 381 Australian Winch and Haulage Co Pty Ltd v Collins [2013] NSWCA 327 Donnellan v Woodland [2012] NSWCA 455 Estate of the late MT Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340 Grima v RFI (Aust) Pty Ltd [2013] NSWSC 1199 Grima v RFI (Aust) Pty Ltd [2014] NSWSC 14 House v The King [1936] HCA 40; 55 CLR 499 James Hardie & Coy Pty Ltd v Wyong Shire Council [2000] NSWCA 107; 48 NSWLR 679 Pennington v Norris [1956] HCA 26; 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Category: Principal judgment Parties: Carmel Grima (Appellant) RFI (Aust) Pty Ltd t/as Regen Foam ) (First Respondent) Allied Overnight Express Pty Ltd (Second Respondent) Representation: Counsel: E G Romaniuk SC/S J Maybury (Appellant) M T McCulloch SC/J C Chapman (First Respondent) J P Guihot (Second Respondent) Solicitors: Edwards Michael Lawyers (Appellant) Walker Hodges & Co (First Respondent) HWL Ebsworth Lawyers (Second Respondent) File Number(s): CA 2014/46322 Decision under appeal Citation: [2013] NSWSC 1199; [2014] NSWSC 14 Before: Harrison J File Number(s): 2011/201053