Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54. Basten JA, Simpson JA, Sackville AJA. The Court of Appeal has made
Judgment Summary Supreme Court New South Wales Court of Appeal Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54 Basten JA, Simpson JA, Sackville AJA The Court of Appeal has made a small reduction in the damages awarded against Strategic Formwork Pty Ltd (“Strategic”) for personal injury suffered by Mr Daniel Hitchen, but otherwise dismissed Strategic’s appeal against a finding that it was liable to Mr Hitchen in negligence. On 2 May 2011 Daniel Hitchen was severely injured while unloading timber beams from a shipping container on the premises of his employer, RTS Holdings Pty Ltd (“RTS”), at Corrimal. He sued both RTS and Strategic, which he said exercised control over RTS. RTS admitted liability for the incident; Strategic denied liability. RTS had a close commercial relationship with Strategic. Strategic obtained contracts to do the formwork for the central core of high rise buildings, designed the formwork, and provided those designs to RTS. Yard labourers at the Corrimal site constructed the components in accordance with the plans and obtained the necessary equipment and materials for use at the building site. RTS arranged for the materials to be transported to the building site and stored, serviced and maintained the reusable equipment. Graham Van Der Merwe, the managing director of Strategic at the time of the incident, had been the general manager of RTS from when it commenced operations in 2009 until January 2011. His wife was the sole director, secretary and shareholder of RTS. RTS had been created to protect Strategic’s assets. On 17 February 2017, Harrison AsJ (the trial judge) gave judgment for Mr Hitchen against both RTS and Strategic, apportioning liability at 40% and 60% respectively, and awarded damages of $740,000 payable by RTS and $1.7 million payable by Strategic. The main issues on appeal were: first, whether Strategic owed Mr Hitchen a duty of care and, if so, whether it had been breached; second, whether the trial judge’s apportionment of responsibility should be modified; and third, whether the trial judge’s award of damages against Strategic should be modified. On the first issue, the Court held that Strategic exercised control over the operations of RTS at Corrimal, with this control extending to supervision of occupational health and safety. Strategic therefore owed Mr Hitchen a duty of care. There was no reason to doubt the trial judge’s conclusion that it had breached this duty. On the second issue, the Court held that the trial judge’s findings on apportionment were within a reasonable range and should not be interfered with. Simpson JA dissented, holding that apportionment should be adjusted to 75% for Strategic and 25% for RTS.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
On the third issue, the Court accepted that there were errors in the way the trial judge had calculated damages for past and future economic loss. The Court recalculated those damages and, in the result, reduced the overall damages awarded against Strategic from $1,299,773 to $1,173, 275.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
