AEA Constructions Pty Ltd v Wharekawa;; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: AEA Constructions Pty Ltd v Wharekawa;; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176 Hearing dates: 14 November 2018 Decision date: 19 July 2019 Before: Basten JA at [1]; Gleeson JA at [22]; White JA at [23] Decision: (1) In appeal proceedings 2018/178977 order that the appeal be dismissed with costs. (2) In appeal proceedings 2018/236109 order that the appeal be dismissed with costs. Catchwords: TORTS — negligence — apportionment of responsibility and damages — primary judge held that appellant vicariously liable for injury and breached duty of care owed to respondent — primary judge found no negligence on part of worker's employer — whether primary judge erred in finding worker's employer not in breach of duty and liable in damages to respondent such as to entitle appellant to contribution from employer — whether primary judge erred in assessment of non-economic loss by applying a 10% reduction to percentage of most extreme case to reflect for contingency — whether primary judge's assessment as to past economic loss supported by evidence — whether primary judge's estimation of working life of 60 years and application of 20 per cent buffer for vicissitudes sufficient to account for fact that surgery brought about by negligence would have been necessary at some point in future in any event Legislation Cited: Civil Liability Act 2002 (NSW), ss 3, 5B, 5D, 23, 16 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Workers Compensation Act 1987 (NSW), s 151Z Cases Cited: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Clifton v Lewis [2012] NSWCA 229 Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 at [12] Dell v Dalton (1991) 23 NSWLR 528 Dib Group Pty Ltd (t/as Hill and Co.) v Cole [2009] NSWCA 210 Hall v State of New South Wales [2014] NSWCA 154 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42 House v The King (1936) 55 CLR 499; [1936] HCA 40 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Muller v Sanders (1995) 21 MVR 309 Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd ("Wagon Mound No 2") [1967] AC 617 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Wharekawa v AEA Constructions Pty Ltd; Building Partners Pty Ltd v AEA Constructions Pty Ltd [2018] NSWSC 684 Wilson v Peisley (1975) 50 ALJR 207 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Texts Cited: D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, 2018, Law Book Co) Category: Principal judgment Parties: AEA Constructions Pty Ltd (Appellant) Raymond Wharekawa (First Respondent 2018/178977) Building Partners Pty Ltd (Second Respondent 2018/178977; Respondent 2018/236109) Representation: Counsel: J E Maconachie QC with M Davis (Appellant) D Higgs SC with A Davis (Wharekawa) P Morris with F Costano (Building Partners)