Hanson Construction Materials Pty Limited v Tawhai [2010] NSWCA 55

Hanson Construction Materials Pty Limited v Tawhai [2010] NSWCA 55

Hanson owed the plaintiff a duty to exercise reasonable care analogous to that owed by an employer and breached it by failing to ascertain and tell the plaintiff of the quarry notification system or to liaise to establish such a system for a foreseeable collision risk. The plaintiff was not shown to have failed to take reasonable care for his own safety, and the equal apportionment between Hanson's breach and Pioneer's vicarious liability for its driver's negligence was not plainly unreasonable. The non-economic loss and domestic assistance awards disclosed no appellable error, but past economic loss had to be reduced for post-accident Adecco earnings and the Multiserv overtime allowance,...

Jurisdiction
Australia
Judgment Date
01 April 2010
Procedural Posture
Appeal and Cross Appeals in Negligence Damages Proceedings / Court of Appeal From Orders of Delaney DCJ in the District Court Dated 27 November 2008 Following a Decision on 3 October 2008
Outcome
Appeal allowed; cross-appeal dismissed.
Legal Topics
['duty of Care Owed by Host Entity to Labour Hire Worker' 'breach of Duty and Causation' 'contributory Negligence' 'apportionment Between Tortfeasors' 'fresh Evidence on Appeal' 'future Economic Loss Under Civil Liability Act 2002 S13' 'domestic Assistance Damages']
['tort' 'negligence' 'damages' 'civil Procedure'] ['duty of Care Owed by Host Entity to Labour Hire Worker' 'breach of Duty and Causation' 'contributory Negligence' 'apportionment Between Tortfeasors' 'fresh Evidence on Appeal' 'future Economic Loss Under Civil Liability Act 2002 S13' 'domestic Assistance Damages']

Case Brief

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Procedural Posture

Appeal and Cross Appeals in Negligence Damages Proceedings / Court of Appeal From Orders of Delaney DCJ in the District Court Dated 27 November 2008 Following a Decision on 3 October 2008

Legal Issues

  1. 1 ['Whether Hanson breached its duty of care to the plaintiff, a labour hire worker driving a truck supplied by Hanson.' "Whether any breach by Hanson caused the plaintiff's injuries." 'Whether the plaintiff was guilty of contributory negligence.' 'Whether liability between Hanson and Pioneer was properly apportioned equally.' 'Whether the assessment of non-economic loss was excessive.' 'Whether past economic loss should be reduced for earnings after the accident and for the overtime allowance.' 'Whether future economic loss was assessed on the correct assumptions.' 'Whether damages for domestic assistance were available.' "Whether fresh evidence of the termination of the plaintiff's employment with Multiserv should be admitted."]

Ratio Decidendi

Hanson owed the plaintiff a duty to exercise reasonable care analogous to that owed by an employer and breached it by failing to ascertain and tell the plaintiff of the quarry notification system or to liaise to establish such a system for a foreseeable collision risk. The plaintiff was not shown to have failed to take reasonable care for his own safety, and the equal apportionment between Hanson's breach and Pioneer's vicarious liability for its driver's negligence was not plainly unreasonable. The non-economic loss and domestic assistance awards disclosed no appellable error, but past economic loss had to be reduced for post-accident Adecco earnings and the Multiserv overtime allowance,...

Court Disposition

Appeal allowed; cross-appeal dismissed.

Orders

  • ['Appeal allowed.' 'Cross-appeal dismissed.' 'Hanson to bring in short minutes of order within twenty-eight days, or if short minutes of order are not agreed, to bring in its proposed short minutes with submissions, with submissions from the other parties to be provided within a further fourteen days.']