Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253

The appeals were allowed because, after the primary judge rejected Mr Hennessy's evidence about the height of the step, the remaining evidence supported only the limited finding that the step into the gatehouse was "higher than normal". There was no reliable evidence of the actual height, the normal range of step heights, any applicable standard, any awkwardness in using the step, prior incidents, or a sufficiently precise accident mechanism. The primary judge erred by treating the step as awkward and by relying materially on Patrick Stevedores' subsequent installation of a step and awning contrary to the limitation in s 5C(c). The limited findings could not satisfy s 5B(1)(c) that a...

Jurisdiction
Australia
Judgment Date
27 August 2015
Procedural Posture
Appeals in Negligence Proceedings Arising From Workplace Slip and Fall / Appeals From Judgments and Orders of the Supreme Court of New South Wales, Common Law Division, Hennessy V Patrick Stevedores Operations [2014] NSWSC 1716
Outcome
In each appeal, appeal allowed; first instance judgments and orders set aside except order 7 concerning costs of cross-claims; proceedings dismissed.
Legal Topics
['slip and Fall at Work' 'breach of Duty of Care' 'civil Liability Act 2002 (nsw) S 5 B' 'civil Liability Act 2002 (nsw) S 5 C' 'causation' 'subsequent Remedial Measures' 'statutory Contribution']
['torts' 'negligence' "occupiers' Liability" 'employer Liability' 'workers Compensation'] ['slip and Fall at Work' 'breach of Duty of Care' 'civil Liability Act 2002 (nsw) S 5 B' 'civil Liability Act 2002 (nsw) S 5 C' 'causation' 'subsequent Remedial Measures' 'statutory Contribution']

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Procedural Posture

Appeals in Negligence Proceedings Arising From Workplace Slip and Fall / Appeals From Judgments and Orders of the Supreme Court of New South Wales, Common Law Division, Hennessy V Patrick Stevedores Operations [2014] NSWSC 1716

Legal Issues

  1. 1 ['Whether the primary judge had a proper evidentiary basis to find that Patrick Stevedores breached its duty of care by failing to install an intermediate step and awning at the gatehouse entrance.' 'Whether FBIS breached its duty as employer by failing to inspect the gatehouse and ask Patrick Stevedores to install a step and awning.' 'Whether the finding that the step was "higher than normal", without precise findings as to height, normal standards, awkwardness or accident mechanism, could support breach of duty and causation.' "Whether Mr Hennessy's notices of contention concerning failure to provide a handrail should be upheld."]

Ratio Decidendi

The appeals were allowed because, after the primary judge rejected Mr Hennessy's evidence about the height of the step, the remaining evidence supported only the limited finding that the step into the gatehouse was "higher than normal". There was no reliable evidence of the actual height, the normal range of step heights, any applicable standard, any awkwardness in using the step, prior incidents, or a sufficiently precise accident mechanism. The primary judge erred by treating the step as awkward and by relying materially on Patrick Stevedores' subsequent installation of a step and awning contrary to the limitation in s 5C(c). The limited findings could not satisfy s 5B(1)(c) that a...

Court Disposition

In each appeal, appeal allowed; first instance judgments and orders set aside except order 7 concerning costs of cross-claims; proceedings dismissed.

Orders

  • ['Appeal allowed.' 'Set aside the judgments and orders made on 2 and 19 December 2014 save for order 7 (which was that the defendants bear their own costs of the cross-claims), and in lieu thereof, dismiss the proceedings.' "Order that Mr Hennessy pay the appellant's costs of the appeal, and the appellant's costs of...