AF Concrete Pumping Pty Ltd v Ryan

The case of *AF Concrete Pumping Pty Ltd v Ryan* concerned an appeal to the Court of Appeal of New South Wales. The appellant, AF Concrete Pumping Pty Ltd, was the employer of the first respondent, Mr. Ryan, who suffered an injury while working. The dispute arose from Mr. Ryan's claim for workers' compensation, specifically concerning the extent of his permanent impairment and the appellant's liability, including its responsibility for the negligence of another independent contractor on the worksite.

The primary legal issues before the Court of Appeal were whether the appellant, as an employer, had breached its non-delegable duty of care to provide a safe system of work, and whether it was liable for the negligence of another independent contractor. Additionally, the court was required to determine the correct method for calculating the degree of Mr. Ryan's permanent impairment in accordance with the relevant New South Wales legislation and the WorkCover Guides. The appeal also involved a challenge to a costs order made by the primary judge, including whether leave was required to appeal that order and whether the appellant's conduct warranted indemnity costs.

The Court of Appeal considered the appellant's non-delegable duty of care, noting that an employer remains responsible for the safety of its employees even when engaging independent contractors. The court examined the evidence regarding the system of work and the actions of the other independent contractor to assess whether the appellant had failed in its duty. Furthermore, the court analysed the expert evidence presented concerning the calculation of permanent impairment, applying the principles outlined in the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) and the *Workers Compensation Act 1987* (NSW). The court also addressed the costs appeal, considering the discretion of the primary judge and the appellant's conduct in the proceedings.

The Court of Appeal granted leave to appeal from a costs order made on 14 March 2013 and allowed the appeal in part, setting aside that order. The appellant was ordered to pay the costs of the first respondent and Reliance Pools International Pty Ltd of the proceedings before the primary judge. The appeal was otherwise dismissed, and the appellant was ordered to pay a significant proportion of the costs of the respondents for the appeal and related summonses.