Bauer Media Pty Ltd t/as Network Services Company v Khedrlarian [2018] NSWCA 208

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bauer Media Pty Ltd t/as Network Services Company v Khedrlarian [2018] NSWCA 208 Hearing dates: 3 September 2018 Decision date: 20 September 2018 Before: McColl JA at [1]; Macfarlan JA at [2]; Leeming JA at [3] Decision: 1. Appeal and cross-appeal allowed.

2. Set aside the orders made on 24 November 2017.

3. Remit the proceedings to the District Court for retrial.

4. The costs of the first trial to be within the discretion of the Court which hears and determines the retrial.

5. Ms Khedrlarian to pay the costs of Bauer Media Pty Ltd and the Workers Compensation Nominal Insurer of the appeal and cross-appeal. Catchwords: NEGLIGENCE – plaintiff employee of labour hire company – claim against employer and occupier – plaintiff alleged back injury – findings of failures to undertake risk assessment and failures to rotate, supervise and train workers – findings made without attending to relevant evidence – no findings of causation – no findings of primary fact as to events giving rise to litigation – consideration of whether litigation could be determined without retrial – appeal allowed and retrial ordered Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5D Evidence Act 1995 (NSW), s 136 Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Workers Compensation Act 1987 (NSW), Pt 5 Div 3, ss 151A, 151Z Cases Cited: Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27 Betts v Whittingslowe (1945) 71 CLR 637; [1945] HCA 31 Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 March v Stramare (E and MH) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 TC by his tutor Sabatino v New South Wales [2001] NSWCA 380 Vincent v Woolworths Ltd [2016] NSWCA 40 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Category: Principal judgment Parties: Bauer Media Pty Ltd t/as Network Services Company (Appellant/Second Cross-Respondent) Mary Khedrlarian (First Respondent/First Cross-Respondent) Workers Compensation Nominal Insurer (Second Respondent/Cross-Appellant) Representation: Counsel: N Polin SC (Appellant/Second Cross-Respondent) M Neil QC, E Chrysostomou (First Respondent/First Cross-Respondent) N Chen SC, J Lee (Second Respondent/Cross-Appellant)