Kabic v AAI Limited t/as GIO [2019] NSWCA 247

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kabic v AAI Limited t/as GIO [2019] NSWCA 247 Hearing dates: 14 and 15 March 2019 Decision date: 11 October 2019 Before: Meagher JA at [1]; White JA at [2]; McCallum JA at [204] Decision: (1) Appeal allowed in part. (2) Cross-appeal dismissed. (3) Set aside the orders 1, 2 and 3 made on 11 July 2018. (4) Direct that within 21 days the parties provide short minutes of order for the judgments to be entered for the appellant against the respondent and for the second cross-respondent against the cross-appellant consistently with these reasons. (5) If the parties do not agree upon the orders to be made in accordance with these reasons, within 21 days each party is to file and serve the orders which it and he proposes together with written submissions of not more than five pages in support of the orders proposed. Submissions in reply to the submissions and proposed orders of other parties may be filed and served within seven days thereafter. (6) Order that the respondent and cross-appellant pay the costs of the appellant and cross-respondents of the appeal and cross-appeal. Catchwords: TORTS — negligence — labourer fell from raised wet plywood platform — whether expert evidence necessary to support finding that surface was slippery — whether primary judge erred in assessment of evidence and consequent factual findings — contributory negligence — whether worker contributorily negligent in following employer's direction to work on wet platform

DAMAGES — assessment of damages for economic loss — whether evidence supported finding of residual earning capacity — application of principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Evidence Act 1995 (NSW), s 79 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Workers Compensation Act 1987 (NSW), s 151Z Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 325