[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: On 23 February 2015, the Court published its reasons for concluding that BlueScope's appeal and the Insurer's cross-appeal should both be allowed, that the orders of the primary judge should be set aside, and that, in lieu of those orders, there should be a verdict and judgment for BlueScope and the Insurer, together with an order that Mr Cartwright pay the costs of BlueScope and of the Insurer of the proceedings before the primary judge: BlueScope v Cartwright [2015] NSWCA 25. The Court also concluded that the second cross-appeal (filed by Mr Cartwright) should be dismissed.
Since BlueScope had been entirely successful in the appeal, the Court proposed that Mr Cartwright and the Insurer should pay BlueScope's costs of the appeal, but that Mr Cartwright should have a certificate under the Suitors' Fund Act 1951 (NSW). The Court also concluded that, although the Insurer had been successful in its cross-appeal, it did not file the cross-appeal until after the hearing of BlueScope's appeal had begun. The Court concluded that the appropriate course was to make no order as to the costs of either of the cross-appeals.
However, there had been no argument as to costs and, accordingly, the Court invited the parties to make any submissions that they wished as to costs, contrary to the orders proposed. The Court has now received submissions from BlueScope and the Insurer. Mr Cartwright has filed no submissions. The further submissions concern the question of whether the Insurer should be ordered to pay BlueScope's costs of the appeal. BlueScope also asks for orders that the Insurer pay its costs of the proceedings before the primary judge.
The basis upon which BlueScope contends that the Insurer should be ordered to pay its costs, both of the appeal and of the proceedings at first instance, is that the Insurer, in the conduct of the proceedings at first instance and in the conduct of the appeal, supported the case advanced by Mr Cartwright on the question of causation. It is fair to say that causation of the accident was the central issue in dispute and that it resulted in the incurring of the majority of the costs of the proceedings at first instance.
BlueScope submits that, in the proceedings at first instance, the Insurer admitted Mr Cartwright's case on causation on the pleadings. That gave support to Mr Cartwright's case against BlueScope at an early stage. During the course of the trial, the Insurer admitted that Mannway owed a duty to Mr Cartwright and that Mannway breached that duty. That was done with the object of supporting Mr Cartwright's case against BlueScope.
In support of its submission that the Insurer admitted Mr Cartwright's case on causation on the pleadings, BlueScope refers to the Insurer's defence to Mr Cartwright's amended statement of claim. The defence stated, at para 1, that "[the Insurer] admits paragraphs 1 to 7 inclusive of the Amended Statement of Claim". In the amended statement of claim, it was stated at para 7 that, as Mr Cartwright drove towards the accident site, the steel coils "moved causing the Plaintiff's vehicle to drive out of control and the Plaintiff was thereby injured" (emphasis added). However, the defence explicitly denied para 8 of the amended statement of claim (which pleaded that "the matters complained of were caused by the negligence of [BlueScope] and [the Insurer]") and it did not admit para 9 of the amended statement of claim (which pleaded that "[b]y reason of the negligence of both [BlueScope] and [the Insurer], the Plaintiff was injured").
In support of its submission that the Insurer admitted that Mannway breached its duty of care to Mr Cartwright during the trial, BlueScope makes reference to two pages of the transcript of proceedings before the primary judge. However, those references do not appear to support the concessions that BlueScope contends were made. The Insurer did ultimately concede that Mannway had breached its duty of care, but that concession was made on the second day of the appeal hearing after the Court had requested that the Insurer clarify its position.
BlueScope submits, in addition, that the Insurer adduced and relied on evidence that was intended to support Mr Cartwright's case on causation and breach against BlueScope. While some of that evidence was rejected, it is relevant to have regard to the case that the Insurer sought to mount.
Specifically, the Insurer sought to adduce evidence from Mr Brian Rooney who was employed by Mannway as regional manager for New South Wales at the time of Mr Cartwright's accident. Two statements by Mr Rooney were proffered. In one statement, Mr Rooney said that, although it appeared that the load in the truck that Mr Cartwright was driving was secure because all the correct chocks were in place, nailed down and locked against the container wall as set down by BlueScope, there was a gap created by the extra timber, which would allow the load to move and be unstable when cornering. Mr Rooney said that, when Mr Cartwright negotiated the bend in the Princes Highway where the accident occurred, the coil moved laterally inside the container and caused his truck to roll over. Mr Rooney said that, after the investigation into the cause of the accident, Mannway's loading procedure was changed to allow for the raised height of the vertical coils from BlueScope's CRM site and that BlueScope soon after changed its own procedure at the CRM site. (For an explanation of the significance of the raised height of the vertical coils produced at the CRM site, see the primary judgment at [29]ff.)
In a second statement, Mr Rooney said that BlueScope provided to Mannway very detailed conditions, specifications and requirements for the packing, load restraint and loading requirements for steel coils. He said that Mannway had to comply with all the specifications for loading methods, securing and transporting procedures specified by BlueScope and that Mannway was not permitted to modify or deviate from the clear specifications set down by BlueScope. He said it was a fundamental condition of the agreement between Mannway and BlueScope that Mannway precisely follow BlueScope's specifications for load restraint and transport. Mr Rooney said further that Mannway did not have the level of specific expert engineering knowledge about the steel coils that BlueScope's engineers had and that BlueScope's engineers had calculated specifications and formulated all the guidelines for load stability that Mannway had to follow to be allowed to transport steel coils. He said that Mannway had no such engineering capability to disagree with BlueScope's expert direction on load transport and stability. Finally, Mr Rooney said that, in the case of the loading of Mr Cartwright's vehicle, Mannway workers followed the specific BlueScope procedures as written in the loading specification procedure and that required that specific-sized wooden chocks had to be placed under the pallet (on which the steel coils were placed) on the sides and locked up against the wall of the container.
BlueScope contends that the ideal result for the Insurer in the proceedings at first instance would have been complete victory by Mr Cartwright over BlueScope and a verdict in the Insurer's favour. BlueScope says that it was, in effect, forced to defend itself against both Mr Cartwright and the Insurer, both at first instance and on appeal. In substance, both Mr Cartwright and the Insurer were unsuccessful as against BlueScope.
The Insurer, on the other hand, contends that it has been entirely successful in its defence of Mr Cartwright's claim against it and Mannway. By way of alternative, the Insurer says that, if the Court considers that it is appropriate for both Mr Cartwright and the Insurer to be liable for BlueScope's costs of the appeal, the Insurer's liability should be limited to one half of those costs.
Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides that costs should follow the event unless it appears to the court that some other order should be made. The Insurer says that there is no basis for making another order. It says that the issue in BlueScope's appeal was between BlueScope and Mr Cartwright and that the Insurer had no part in that dispute. However, one of the issues in the appeal was the apportionment of liability between BlueScope and Mannway, assuming that BlueScope was found to have breached its duty. Furthermore, in the Insurer's cross-appeal, one of the grounds was that the primary judge erred in finding that any breach of duty on its part caused Mr Cartwright's injuries.
The Insurer relies on an agreed statement of issues provided to the primary judge which made clear that the issue of causation was always present as between all parties and that there was no concession on the issue of causation by the Insurer. It says that, having been ultimately successful on that issue, Mr Cartwright should pay its costs of the hearing and there is no warrant for suggesting that the Insurer should be responsible for BlueScope's costs of the hearing at first instance. There was no cross-claim between BlueScope and the Insurer. The Insurer, it says, did no more than defend the proceedings brought by Mr Cartwright against it, in respect of which it was ultimately successful.
Finally, in relation to the evidence of Mr Rooney, the Insurer submits that his statements had already been produced under subpoena by the Insurer and that he could have been called by Mr Cartwright. In any event, it says, Mr Rooney's evidence did not touch on the issue of causation.
The Insurer has not advanced persuasive grounds for departing from the provisional view expressed in the reasons of 23 February 2015. Although the Insurer was successful in the appeal insofar as its conduct was not found to have caused Mr Cartwright's injuries, it was unsuccessful insofar as it had sought to support the primary judge's findings on the issues of the scope and breach of BlueScope's duty to Mr Cartwright. It was of course also unsuccessful insofar as it had sought to support the primary judge's finding that BlueScope's breach of duty was a cause of Mr Cartwright's injuries.
The orders of the Court should therefore be as proposed in those reasons. The following orders should be made:
1. Appeal allowed.
2. Cross-appeal (filed by the second respondent) allowed.
3. Second cross-appeal (filed by the first respondent) dismissed.
4. The orders of Simpson J on 15 August 2013 be set aside, and, in lieu thereof, there be a verdict and judgment for the appellant and the second respondent.
5. The first respondent pay the costs of the appellant and of the second respondent of the proceedings before Simpson J.
6. The first and second respondents pay the appellant's costs of the appeal.
7. The first respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951 (NSW).
8. No order as to the costs of the cross-appeal or of the second cross-appeal.
[3]
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Decision last updated: 14 April 2015