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Bailey v Kmar Engineering Pty Ltd

Bailey v Kmar Engineering Pty Ltd

Case [2025] NSWSC 1266 28 October 2025

Contributory Negligence

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Bailey v Kmar Engineering Pty Ltd [2025] NSWSC 1266
Hearing dates: 19, 20, 21 and 25 August 2025
Date of orders: 28 October 2025
Decision date: 28 October 2025
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) The plaintiff is directed to file and serve Short Minutes of Order reflecting this judgment within 48 hours of the publication of this judgment.

Catchwords:
TORTS – negligence – liability for crush injury at work – whether occupier breached duty of care – vicarious liability – defendant failed to establish the defence of contributory negligence
TORTS – negligence – identification of risk of harm – whether risk of injury was an obvious risk – precautions which a reasonable person would have taken in the circumstances – precautions including safe zones, exclusion zones and hand signals – whether adequate precautions taken
DAMAGES – quantum of damages – out of pocket expenses – economic loss – non-economic loss and superannuation – domestic assistance and care – apportionment – s 151Z Workers Compensation Act 1987 (NSW)

Legislation Cited:
Civil Liability Act 2005 (NSW), ss 5B, 5C, 5D(1), 5F, 16(2), 33
Work Health and Safety Regulation 2017
Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:
5 Boroughs NY Pty Ltd v State of Victoria; Roberts v State of Victoria [2021] VSC 785
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, [2009] HCA 48
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, [1990] HCA 11
Bird v DP (a pseudonym) [2024] HCA 41
Burton v Brooks [2011] NSWCA 175
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, [2011] HCA 21
De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Garzo v Liverpool/Campbel/town Christian School [2012] NSWCA 151
Jones v Dunkel (1959) 101 CLR 298, [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Liu v Lam [2024] NSWSC 1306
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Pavlis v Pavlis [2021] NSWSC 1117
Pavlis v Pavlis [2021] NSWSC 1117
RHG Mortgage Limited v Ianni [2015] NSWCA 56
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Sangha v Baxter [2009] NSWCA 78
Shoalhaven City Council v Pender [2013] NSWCA 210
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Vairy v Wyong Shore Council (2005) 223 CLR 422; [2005] HCA 62
Vairy v Wyong Shore Council (2005) 223 CLR 422; [2005] HCA 62

Texts Cited:
Nil

Category: Principal judgment
Parties: Mr Justin Bailey (Plaintiff)
Kmar Engineering Pty Ltd (First Defendant)
MMM LOGISTICS PTY LTD (Second Defendant)
Haworth Transport Services Pty Ltd (Third Defendant)
Representation:
Counsel:
L Robison with D Gray (Plaintiff)
M Noakhtar (First…

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.

Continue reading Bailey v Kmar Engineering Pty Ltd

Details

AGLC: Bailey v Kmar Engineering Pty Ltd [2025] NSWSC 1266
Case: [2025] NSWSC 1266
Decision Date: 28 October 2025

CaseChat Overview and Summary

The matter of Bailey v Kmar Engineering Pty Ltd came before the court where the plaintiff, Bailey, sought compensation for injuries sustained in a workplace accident. Bailey, an employee of Kmar Engineering, suffered crush injuries while operating a crane at the defendant's site. The dispute centred on whether the defendant breached its duty of care, whether the risk of injury was obvious, and the adequacy of precautions taken to mitigate such risks. Additionally, the court had to determine the appropriate quantum of damages, including economic loss, non-economic loss, and superannuation, as well as the apportionment of damages under section 151Z of the Workers Compensation Act 1987 (NSW).

The court was required to decide whether the defendant, as the occupier, breached its duty of care by failing to implement sufficient safety measures to prevent the accident. It also had to consider whether the risk of injury was so obvious that no duty of care was owed or whether adequate precautions were taken to mitigate the risk. Furthermore, the court needed to assess the adequacy of the precautions, such as safe zones, exclusion zones, and hand signals, and whether these met the standard of a reasonable person in similar circumstances. The court also needed to examine the defence of contributory negligence and whether it was successfully established by the defendant.

In its reasoning, the court held that the defendant breached its duty of care by not implementing sufficient safety measures. The court found that the risk of injury was not so obvious as to negate the defendant's duty to take reasonable care. The precautions taken, such as the establishment of safe zones and exclusion zones, were found to be inadequate. The court also rejected the defence of contributory negligence, finding that Bailey's actions did not contribute to his injuries. Regarding damages, the court awarded Bailey compensation for economic loss, non-economic loss, and superannuation, along with domestic assistance and care, and apportioned the damages in accordance with section 151Z of the Workers Compensation Act 1987 (NSW).

The court ordered the defendant to pay Bailey compensation for the injuries sustained, including out-of-pocket expenses, economic loss, non-economic loss, and superannuation. The defendant was also required to pay for domestic assistance and care. The court further directed the apportionment of damages in accordance with the statutory provisions, ensuring that the compensation awarded was just and equitable. The defendant's liability was affirmed, and the plaintiff's claim was upheld in full.

Orders