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

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

The appeal and cross-appeals had to be allowed because the primary judge failed to make adequate findings and give adequate reasons on critical factual issues concerning how Mr King came to participate in repairing the roller door, what conduct of his caused or contributed to the accident, the mechanism of the accident, and why different percentages of contributory negligence were assessed. The orders against the State also could not stand because the finding of breach was based on an unpleaded failure to direct Mr Morgan not to undertake repair work with a person such as Mr King, denying procedural fairness. The appropriate course was to set aside the first instance orders and remit the...

Jurisdiction
Australia
Judgment Date
29 April 2016
Procedural Posture
Appeal and Cross Appeals in Negligence, Workers Compensation Indemnity, Damages and Costs Proceedings / Appeal From Orders of the District Court of New South Wales Made After Findings on Liability, Contributory Negligence, Apportionment and Cross Claims
Outcome
The appeal by ISS and the cross-appeals by Mr King and the State were allowed; the first instance orders were set aside and the matter was remitted to the District Court for further hearing.
Legal Topics
['negligence' 'workplace Injury' 'contributory Negligence' 'adequacy of Reasons' 'pleadings and Procedural Fairness' 'workers Compensation Act 1987 (nsw), S 151 Z Indemnity' 'interest' 'contribution Between Tortfeasors']
['torts' 'workers Compensation' 'damages' 'costs' 'civil Procedure'] ['negligence' 'workplace Injury' 'contributory Negligence' 'adequacy of Reasons' 'pleadings and Procedural Fairness' 'workers Compensation Act 1987 (nsw), S 151 Z Indemnity' 'interest' 'contribution Between Tortfeasors']

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Procedural Posture

Appeal and Cross Appeals in Negligence, Workers Compensation Indemnity, Damages and Costs Proceedings / Appeal From Orders of the District Court of New South Wales Made After Findings on Liability, Contributory Negligence, Apportionment and Cross Claims

Legal Issues

  1. 1 ["Whether the primary judge erred by making different assessments of Mr King's contributory negligence in relation to the claims against ISS and the State." 'Whether the primary judge failed to make adequate findings and give adequate reasons for concluding that Mr King caused or contributed to his injuries.' 'Whether the primary judge found a breach of duty by the State on a basis that was not pleaded.' 'Whether ISS was entitled to an indemnity from the State under Workers Compensation Act 1987 (NSW), s 151Z.' 'Whether ISS was entitled to interest on compensation paid on behalf of Mr King.' 'Whether the matter should be remitted for further hearing.']

Ratio Decidendi

The appeal and cross-appeals had to be allowed because the primary judge failed to make adequate findings and give adequate reasons on critical factual issues concerning how Mr King came to participate in repairing the roller door, what conduct of his caused or contributed to the accident, the mechanism of the accident, and why different percentages of contributory negligence were assessed. The orders against the State also could not stand because the finding of breach was based on an unpleaded failure to direct Mr Morgan not to undertake repair work with a person such as Mr King, denying procedural fairness. The appropriate course was to set aside the first instance orders and remit the...

Court Disposition

The appeal by ISS and the cross-appeals by Mr King and the State were allowed; the first instance orders were set aside and the matter was remitted to the District Court for further hearing.

Orders

  • ['The appeal by ISS and the cross appeals by Mr King and the State be allowed.' 'The orders made by the primary judge in the proceedings at first instance be set aside.' '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...