Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer (No 4) [2014] NSWDC 255

Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer (No 4) [2014] NSWDC 255

Given lack of precise evidence concerning the employer's gravity of breach, and multiplicity of liable parties (some having committed criminal acts), damages apportioned equally between employer (through its insurer), Dobeson, and Hammond; Insurer liable for one-third of damages. Offers of settlement by insurer did not satisfy the regulation for cost-shifting because of the existence of multiple defendants; each party to bear their own costs in that proceeding.

Parties
Plaintiff: Kathaleen Nicoll; First Defendant/second Cross Defendant: Dean Dobeson; Second Defendant/third Cross Defendant: Robert Hammond; Third Defendant/first Cross Defendant: Sussex Inlet RSL Club Ltd; Defendant/cross Claimant: The Workers Compensation Nominal Insurer
Jurisdiction
Australia
Judgment Date
25 August 2014
Procedural Posture
Civil / Decision on Final Orders Including Cross Claims and Costs
Outcome
Final orders made: Apportionment of liability, judgments for and against various parties, costs orders specified.
Legal Topics
Employer Liability, Apportionment of Damages, Cross Claims, Personal Injury, Costs Assessment, Labour Hire Responsibility
Negligence Personal Injury Workers Compensation Employer Liability Apportionment of Damages Cross Claims Costs Assessment Labour Hire Responsibility

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Parties

Kathaleen Nicoll

Plaintiff

Dean Dobeson

First Defendant/second Cross Defendant

Robert Hammond

Second Defendant/third Cross Defendant

Sussex Inlet RSL Club Ltd

Third Defendant/first Cross Defendant

The Workers Compensation Nominal Insurer

Defendant/cross Claimant

Procedural Posture

Civil / Decision on Final Orders Including Cross Claims and Costs

Legal Issues

  1. 1 Appropriate apportionment of liability among parties where damages result from both negligence and criminal conduct
  2. 2 Calculation of damages recoverable from employer's insurer and co-defendants
  3. 3 Order for costs in the context of multiple defendants and offers of settlement

Ratio Decidendi

Given lack of precise evidence concerning the employer's gravity of breach, and multiplicity of liable parties (some having committed criminal acts), damages apportioned equally between employer (through its insurer), Dobeson, and Hammond; Insurer liable for one-third of damages. Offers of settlement by insurer did not satisfy the regulation for cost-shifting because of the existence of multiple defendants; each party to bear their own costs in that proceeding.

Court Disposition

Final orders made: Apportionment of liability, judgments for and against various parties, costs orders specified.

Orders

  • Orders 1 to 4 of 16 July 2014 set aside.
  • In 2009/339941: Leave to third defendant to file Notice of Change of Solicitor.