ENSEC PTY. LIMITED (In liquidation) . HAWKINS & ANOR. [2004] NSWCA 243

ENSEC PTY. LIMITED (In liquidation) . HAWKINS & ANOR. [2004] NSWCA 243

The finding of negligence against the appellant rested on accepted evidence that the training was inadequately supervised and that no sufficient instruction was given to prevent over-aggressive conduct, resulting in injury; however, it was not open to find negligence based solely on the lack of matting without evidentiary basis. As against the employer (Club), given there was no basis for independent fault, liability arose only from the non-delegable duty of care due to negligence of the contractor. The appellant was required to indemnify the Club accordingly.

Parties
Appellant/cross Defendant: ENSEC PTY. LIMITED (In liquidation); First Respondent/plaintiff: Sandra Alice Hawkins; Second Respondent/defendant/cross Appellant/cross Claimant: Penrith Rugby League Club Limited
Jurisdiction
Australia
Judgment Date
16 July 2004
Procedural Posture
Civil Appeal and Cross Appeal / Court of Appeal Judgment
Outcome
Appeal allowed in part and dismissed in part; cross-appeal allowed in part and dismissed in part.
Legal Topics
Negligence, Non Delegable Duty of Care, Contribution and Indemnity, Employer/employee Liability, Adequacy of Reasons
Tort Law Employment Law Negligence Non Delegable Duty of Care Contribution and Indemnity Employer/employee Liability Adequacy of Reasons

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Parties

ENSEC PTY. LIMITED (In liquidation)

Appellant/cross Defendant

Sandra Alice Hawkins

First Respondent/plaintiff

Penrith Rugby League Club Limited

Second Respondent/defendant/cross Appellant/cross Claimant

Procedural Posture

Civil Appeal and Cross Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether trial judge erred in finding negligence based on common experience lacking evidence
  2. 2 Whether employer (Club) liable for injuries resulting from actions of independent contractor (appellant)
  3. 3 Whether adequate reasons for judgment were given

Ratio Decidendi

The finding of negligence against the appellant rested on accepted evidence that the training was inadequately supervised and that no sufficient instruction was given to prevent over-aggressive conduct, resulting in injury; however, it was not open to find negligence based solely on the lack of matting without evidentiary basis. As against the employer (Club), given there was no basis for independent fault, liability arose only from the non-delegable duty of care due to negligence of the contractor. The appellant was required to indemnify the Club accordingly.

Court Disposition

Appeal allowed in part and dismissed in part; cross-appeal allowed in part and dismissed in part.

Orders

  • Set aside orders 1, 5 and 7 made by the trial judge.
  • Verdict and judgment for the plaintiff/first respondent against the defendant/second respondent in the sum of $259,318.82.