Bernardin v Costain Australia Ltd

In *Bernardin v Costain Australia Ltd*, the New South Wales Court of Appeal considered an appeal from a decision of the District Court concerning a claim for damages for personal injury. The appellant, Mr Bernardin, had suffered injuries while working on a construction site operated by the respondent, Costain Australia Ltd. The core of the dispute revolved around whether Costain Australia Ltd owed a duty of care to Mr Bernardin, and if so, whether that duty had been breached, leading to his injuries.

The Court of Appeal was required to determine two primary legal issues. Firstly, it had to assess whether the respondent, as the principal contractor on the construction site, owed a duty of care to an employee of a sub-contractor, Mr Bernardin, in relation to the safety of the work being performed. Secondly, if such a duty was found to exist, the Court had to consider whether the respondent had breached that duty by failing to take reasonable steps to prevent the injury suffered by Mr Bernardin.

The Court of Appeal affirmed the principles established in cases concerning the duty of care owed by principals to employees of sub-contractors. It held that a principal contractor can owe a duty of care to ensure that work carried out by sub-contractors is performed with reasonable care for the safety of others, particularly where the principal retains a degree of control over the work or the site. The Court found that Costain Australia Ltd had retained sufficient control over the site and the manner of work to owe a duty of care to Mr Bernardin. The Court then examined the specific circumstances of the accident and concluded that the respondent had breached its duty of care by failing to implement adequate safety measures, which directly contributed to Mr Bernardin's injuries. The appeal was accordingly allowed, and the matter was remitted to the District Court for assessment of damages.