Macey v Macquarie Generation & Anor [2009] NSWCA 79

Macey v Macquarie Generation & Anor [2009] NSWCA 79

The appeal failed because the trial judge's rejection of the appellant's account of slipping and turning to face the manhole was open on the evidence, including inconsistencies in histories, the absence of that account from Dr Hill's reports, the appellant's cross-examination and the improbability of exiting unassisted. On the facts found, the appellant was entering the manhole in the forward manner that he later said should have been instructed, so causation was not established. Further, Macquarie's duty as occupier did not require it to provide instructions for an experienced worker performing the ordinary task of entering the manhole, where there was no unusual feature or unexpected...

Jurisdiction
Australia
Judgment Date
09 April 2009
Procedural Posture
Appeal and Cross Appeal From District Court Negligence Proceedings and Cross Claim / Court of Appeal Judgment
Outcome
Appeal dismissed with costs; cross-appeal dismissed with costs.
Legal Topics
['duty of Care Owed by Occupier' 'failure to Instruct Workers' 'foreseeability of Risk' 'challenge to Findings and Inferences of Trial Judge' 'cross Claim for Indemnity and Insurance Obligations' 'rejection of Settlement Offer and Costs']
['torts' 'negligence' "occupiers' Liability" 'work Health and Safety' 'costs' 'appellate Procedure'] ['duty of Care Owed by Occupier' 'failure to Instruct Workers' 'foreseeability of Risk' 'challenge to Findings and Inferences of Trial Judge' 'cross Claim for Indemnity and Insurance Obligations' 'rejection of Settlement Offer and Costs']

Case Brief

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Procedural Posture

Appeal and Cross Appeal From District Court Negligence Proceedings and Cross Claim / Court of Appeal Judgment

Legal Issues

  1. 1 ["Whether the trial judge erred in rejecting the appellant's evidence that he slipped on a step as he turned to face the manhole and dislocated his shoulder." 'Whether Macquarie Generation, as occupier, breached its duty of care by failing to instruct the appellant on a safe manner of entering the manhole.' 'Whether the injury was reasonably foreseeable in circumstances involving access through the manhole.' 'Whether, if Macquarie Generation was not liable to the appellant, any question of contribution between Macquarie Generation and HIS Engineering required determination.' "Whether the trial judge erred in ordering Macquarie Generation to pay HIS Engineering's costs on the cross-claim after Macquarie rejected offers made by HIS Engineering."]

Ratio Decidendi

The appeal failed because the trial judge's rejection of the appellant's account of slipping and turning to face the manhole was open on the evidence, including inconsistencies in histories, the absence of that account from Dr Hill's reports, the appellant's cross-examination and the improbability of exiting unassisted. On the facts found, the appellant was entering the manhole in the forward manner that he later said should have been instructed, so causation was not established. Further, Macquarie's duty as occupier did not require it to provide instructions for an experienced worker performing the ordinary task of entering the manhole, where there was no unusual feature or unexpected...

Court Disposition

Appeal dismissed with costs; cross-appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.' 'Cross-appeal dismissed with costs.']