ISS Facility Services (NSW) Pty Ltd v State of New South Wales [2016] NSWCA 87

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: ISS Facility Services (NSW) Pty Ltd v State of New South Wales [2016] NSWCA 87 Hearing dates: 4 April 2016 Decision date: 29 April 2016 Before: Leeming JA at [1] Payne JA at [9] Emmett AJA [13] Decision: 1. The appeal by ISS and the cross appeals by Mr King and the State be allowed. 2. The orders made by the primary judge in the proceedings at first instance be set aside. 3. The matter be remitted to the District Court for further hearing on the following questions: (a) The liability of the State to Mr King. (b) The extent, if any, to which Mr King caused or contributed to his injury: (i) in relation to the breach of duty on the part of ISS found by the primary judge, and (ii) in relation to any breach of duty, if so found, on the part of the State. (c) The extent to which ISS is entitled to contribution from the State if any breach of duty to Mr King on the part of the State is found. (d) Costs. 4. Each of the parties file and serve, within 21 days, written submissions as to the costs of the appeal and any directions concerning costs of the proceedings in the District Court. 5. Each party file and serve, within a further period of 14 days, written submissions in response to the submissions of the other parties. Catchwords: TORTS – negligence – workplace injury – second respondent employed by appellant as cleaner – second respondent injured in fall from ladder on premises of first respondent – contributory negligence – whether different assessments of the second respondent's contributory negligence ought to have been made with respect to the claims brought against the appellant and the first respondent WORKERS COMPENSATION – whether appellant entitled to indemnity pursuant to Workers Compensation Act 1987, s 151Z DAMAGES – interest COSTS – costs of cross claim brought by appellant against first respondent Legislation Cited: Civil Liability Act 2002 (NSW) Interpretation Act 1987 (NSW), s 50 Workers Compensation Act 1987 (NSW), s 151Z Cases Cited: Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 Holmes v QBE Insurance Limited [2004] NSWCA 432 Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Category: Principal judgment Parties: ISS Facility Services (NSW) Pty Ltd (Appellant/1st Cross Respondent/3rd Cross Respondent) State of New South Wales (1st Respondent/2nd Cross Respondent/2nd Cross Appellant) John King (2nd Respondent/Cross-Appellant/4th Cross Respondent) Representation: Counsel: L King SC/P Rickard (Appellant/1st Cross Respondent/3rd Cross Respondent) P Deakin QC/S Torrington (1st Respondent/2nd Cross Respondent/2nd Cross Appellant) P Mooney SC/E Grotte (2nd Respondent/Cross-Appellant/4th Cross Respondent)