Avopiling Pty Ltd v Bosevski

Avopiling Pty Ltd appealed from a decision of the primary judge in favour of Mr Bosevski, who had brought proceedings against his employer, Avopiling, for damages for negligence. The dispute concerned injuries Mr Bosevski sustained while working for Avopiling. The appeal was heard in the Court of Appeal of New South Wales by McColl, Payne and White JJA.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in finding that Avopiling breached its duty of care to Mr Bosevski, and whether the formulation of the risk of harm was impermissibly narrow. Relatedly, the court considered whether Mr Bosevski or his employer knew or should have known of the risk of harm, and whether it was open to the primary judge to draw a *Jones v Dunkel* inference from Avopiling's failure to call the only two witnesses who could have given evidence about the moment of injury. The court also considered the basis of assessment of damages, including future economic loss, future attendant care needs, and future medical expenses, in light of the *Civil Liability Act 2002* (NSW) and relevant High Court authorities. Finally, the court addressed the appropriateness of awarding costs on the basis of mixed success on significant and separable parts of the appeal.

The Court of Appeal allowed Avopiling's appeal in part, setting aside the primary judge's orders. The court found that the primary judge had erred in his formulation of the risk of harm and consequently in his finding of a breach of duty of care. The court also considered that the *Jones v Dunkel* inference was not available in the circumstances. The court noted that the assessment of damages would need to be reconsidered in light of these findings. In relation to costs, the court ordered that Avopiling pay 60 per cent of Mr Bosevski’s costs of the appeal. In a separate, related appeal concerning the Workers Compensation Nominal Insurer, Avopiling's appeal was dismissed, and Avopiling was ordered to pay the Nominal Insurer's costs of that appeal.