Tarabay v Leite

[2008] NSWCA 259

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Standard of appellate review
3. › Contingent findings
4. › Status of contingent findings on appeal
5. › Whether principle of restraint applies with diminished force to contingent findings that formed no part of the basis for the trial judge's orders
1. Appeal
2. › Standard of appellate review
3. › Apportionment of liability
4. › Whether evaluative judgment on apportionment reviewable on House v The King principles
5. › Whether appellate court should reconsider apportionment and reach its own conclusion
1. Workers Compensation
2. › Recovery against third party
3. › Adjustment of award on account of culpability of employer
4. › Calculation of reduction of overall liability of head contractor
5. › Apportionment of liability between employer and head contractor as joint tortfeasors
6. › Workers Compensation Act 1987 (NSW), s 151Z(2)
1. Negligence
2. › Contributory negligence
3. › Challenge to factual finding
4. › Whether plaintiff's vision obscured by plywood
5. › Whether evidence supported trial judge's finding
6. › Whether factual basis for contributory negligence insupportable

Quick Take

The principle of appellate restraint in reviewing evaluative judgments such as apportionment has diminished force where the finding was contingent, made without analysis of the facts for that particular purpose, and formed no part of the basis for the trial judge's orders. Where a head contractor has overall management and control of a building site and the employer (sub-contractor) has limited control over the site and no particular responsibility for its physical condition, the head contractor will ordinarily bear the greater proportion of liability. The preclusion on gratuitous attendant care services in s 15(3) of the Civil Liability Act 2002 (NSW) has no operation where future care services will need to be provided on a commercial basis.