Tolhurst v Cleary Bros (Bombo) Pty Ltd & Anor [2008] NSWCA 181

Tolhurst v Cleary Bros (Bombo) Pty Ltd & Anor [2008] NSWCA 181

Endeavour owed and breached a duty of care because it created and controlled the conditions in which coal was taken from a high compacted stockpile and could not simply leave the dangerous loading procedure to Cleary. Mr Tolhurst was not contributorily negligent because he was following the unsafe practice expected...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 August 2008
Procedural Posture
Negligence Personal Injury Appeal and Cross Appeals / Appeal From District Court Orders of Phegan DCJ Dated 27 March 2007
Outcome
Appeal allowed and cross-appeals dismissed; proceedings remitted to the District Court for a new trial limited to damages, including causation.
Legal Topics
["duty of Care Owed by Mine Owner to Contractor's Employee" 'breach of Duty in Stockpile Loading Operations' 'contributory Negligence by Employee Following Unsafe Work Practice' 'causation and Aggravation of Injury' 'new Trial Limited to Damages']
['torts' 'negligence' 'personal Injury' 'workers Compensation' 'civil Procedure'] ["duty of Care Owed by Mine Owner to Contractor's Employee" 'breach of Duty in Stockpile Loading Operations' 'contributory Negligence by Employee Following Unsafe Work Practice' 'causation and Aggravation of Injury' 'new Trial Limited to Damages']

Source-derived case record

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Procedural Posture

Negligence Personal Injury Appeal and Cross Appeals / Appeal From District Court Orders of Phegan DCJ Dated 27 March 2007

Legal Issues

  1. 1 ['Whether Endeavour Coal Pty Ltd owed and breached a duty of care to Mr Tolhurst notwithstanding that Cleary Bros (Bombo) Pty Ltd was contracted to perform loading operations.' 'Whether Mr Tolhurst was contributorily negligent by using a loading method he knew was dangerous but which was the practice endorsed by his employer.' "Whether the trial judge erred in analysing causation of Mr Tolhurst's present condition by asking whether the November 2001 incident was a substantial and independent or defining cause rather than whether it was a cause, including by aggravation." 'Whether the proceedings should be remitted for a new trial generally or only on damages, including causation.']

Ratio Decidendi

Endeavour owed and breached a duty of care because it created and controlled the conditions in which coal was taken from a high compacted stockpile and could not simply leave the dangerous loading procedure to Cleary. Mr Tolhurst was not contributorily negligent because he was following the unsafe practice expected by his employer and had no real freedom of choice. The trial judge erred in causation by asking whether the November 2001 incident was the substantial, independent or defining cause of Mr Tolhurst's long-term condition rather than whether it was a cause, including by aggravation. By majority, the established liability findings and the trial judge's acceptance that a serious...

Court Disposition

Appeal allowed and cross-appeals dismissed; proceedings remitted to the District Court for a new trial limited to damages, including causation.

Orders

  • ['Appeal allowed and cross-appeals dismissed.' 'Set aside Orders 1 and 2 made by the trial judge on 27 March 2007 and order in lieu: Verdict and judgment against the first defendant/first respondent (Cleary Bros (Bombo) Pty Limited) in an amount to be assessed.' 'Set aside Orders 1 and 2 made by the trial judge on...