Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54 Hearing dates: 1 and 2 March, 2018 Decision date: 23 March 2018 Before: Basten JA at [1]; Simpson JA at [126]; Sackville AJA at [137] Decision: (1) Set aside order 1 made in the Common Law Division on 30 May 2017 giving judgment for the plaintiff against Strategic Formwork Pty Ltd in the sum of $1,299,773 and in its place give judgment for the plaintiff against Strategic Formwork Pty Ltd in the sum of $1,173,275.

(2) Otherwise dismiss the appeal by Strategic Formwork Pty Ltd.

(3) Dismiss the cross-appeal by Daniel Hitchen with no order as to costs.

(4) Order that Strategic Formwork Pty Ltd pay –

(a) Daniel Hitchen as to 90% of his costs of the appeal; (b) RTS Holdings Pty Ltd its costs of the appeal.

The Court NOTES that the order staying the judgment in favour of Daniel Hitchen pending the outcome of the appeal is now spent. Catchwords: NEGLIGENCE – duty of care – novel categories of duty – companies A and B run integrated business operation – A exercises control over operations at B's premises – whether A owes duty of care to employee of B working at B's premises regarding occupational health and safety – discussion of Caltex Refineries v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258

NEGLIGENCE - apportionment of responsibility – whether trial judge's findings on apportionment should be modified

NEGLIGENCE – damages – award for non-economic loss – whether trial judge's assessment should be modified – economic loss – loss of earning capacity – plaintiff resident in UK – reliance on level of earnings in UK – assessment of superannuation loss under UK law