Agresta v Sydney Water Corporation - [2004] NSWDDT 8

Reported Decision (2004) 1 DDCR 450

Dust Diseases Tribunal

of New South Wales

CITATION: Agresta v Sydney Water Corporation and Anor [2004] NSWDDT 8

PARTIES: Sebastiano Agresta
Sydney Water Corporation
Telstra Corporation

MATTER NUMBER(S): 245 of 2002

JUDGMENT OF: Duck J at 1

CATCHWORDS: :-

LEGISLATION CITED: S 44, Safety Rehabilitation and Compensation Act 1988
S 51(xxxi) Australian Constitution Act

CASES CITED: Commonwealth of Australia v Holland and Commonwealth of Australia v Sandiford (1991) 24 NSWLR 198;
Georgiadias v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297;
Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317;
Mohr v Berrigan Quarry Pty Ltd (In liquidation) & Others (1995) 11 NSWCCR 355;
Macquarie Pathology Services v Sullivan [1995] NSWCA

DATES OF HEARING: 10/02/04 & 15/04/04

EX TEMPORE
JUDGMENT DATE :
04/15/2004

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr A J Leslie, QC instructed by Turner Freeman.
FOR FIRST DEFENDANT: Mr J Sharpe instructed by Phillips Fox
FOR SECOND DEFENDANT: Mr S E Torrington instructed by Sparke Helmore

JUDGMENT:

1. The plaintiff brings proceedings for damages against two defendants, the Sydney Water Corporation, first defendant, and Telstra Corporation Ltd, second defendant. In a sense his story is easy to tell. He is a man born in Italy on 30 October 1927. He married on 29 December 1956. On 4 October 1960 he arrived from Italy to live permanently with his family in Sydney. From 1960 to 1963 he was employed as a labourer by excavation subcontractors working for the Water Board. His affidavit discloses that he worked in sewerage trenches in the Northern suburbs of Sydney. He worked with a jackpick and shovel excavating trenches in what is described in his affidavit as "sandstone country." The work he said was very dusty work.

2. From about 1963 until 1986 he worked as a labourer for the Australian Telecommunications Authority. Whatever identity it has had over the years it has been common ground in the present proceedings that Telstra Corporation Ltd stands in the place of all such authorities, at least for the purposes of this case. His work with the second defendant in its various forms involved the excavation of trenches for telephone lines in what the plaintiff described at par 10 of his affidavit as "sandstone country of the northern suburbs of Sydney." He said that he worked from depots in Mona Vale, Dee Why and French's Forest. The work that he did in that period of his life involved excavating for telephone lines. He worked with a jackpick and shovel. Sometimes he operated a ditchwitch. He said at par 11:

My work in telephone trenches was very dusty work.

3. For at least two days weekly his body and clothes were covered in sandstone dust at the end of each day. He was also exposed to the dust associated with fibrous cement products.

4. In 1986 he had some ill health affecting his limbs. At about that time he had fallen into a trench…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWDDT 8
Decision Date: 04/15/2004

CaseChat Overview and Summary

In the case of Agresta v Sydney Water Corporation, the plaintiff, Mr Agresta, sought compensation from the defendant, Sydney Water Corporation, for injuries sustained during a fall at the Taronga Western Plains Zoo. Mr Agresta alleged that the injuries were a result of the defendant's negligence in failing to maintain a safe environment. The matter was heard in the District Court of New South Wales. The primary issue before the court was whether the Sydney Water Corporation owed a duty of care to Mr Agresta, and if so, whether that duty was breached, leading to the injuries.

The court considered whether Sydney Water Corporation had a sufficient connection to the zoo to establish a duty of care towards visitors, including Mr Agresta. It was necessary to determine if the corporation was involved in the management or maintenance of the premises where the accident occurred. The court also examined whether the corporation could be held liable for the actions of the zoo, which was a separate entity. The court found that while Sydney Water Corporation did have some involvement with the zoo, it was not sufficient to establish a duty of care towards visitors. The court concluded that the primary responsibility for the maintenance and safety of the zoo lay with the zoo itself, not the corporation.

As a result, the court dismissed Mr Agresta's claim against Sydney Water Corporation, finding that the corporation did not owe him a duty of care. The court held that any negligence on the part of the zoo in maintaining the premises did not extend to the corporation. Consequently, the plaintiff's action was unsuccessful. The court's decision was based on the lack of sufficient connection between the corporation and the site of the accident, and the absence of a duty of care owed by the corporation to the plaintiff.

Orders