Boskov v Barclay Mowlem Construction Limited - [2006] NSWSC 168

CITATION: Boskov v Barclay Mowlem Construction Limited [2006] NSWSC 168

HEARING DATE(S): 20, 21, 22, 23, 27 March 2006

JUDGMENT DATE :
28 April 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Malpass at 1

DECISION: Findings; liberty to apply.

CATCHWORDS: Duty of care - head contractor and occupier - Regulation 73 - safe means of access to work place - delegation of duty - liability in tort of employer to head contractor.

LEGISLATION CITED: Construction Safety Regulations 1950
Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1988

CASES CITED: Australian Paper Manufacturers Pty Ltd v Conyers (1962) 62 SR (NSW) 682
Dawson v Hall NSWCA (unreported, 27 July 1994)
Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor; Brimac Pty Ltd v Johnston & Anor [2005] NSWCA 423
Fox v Wood (1981) 148 CLR 438
H C Buckman & Son Pty Limited v Flanagan & Anor (1974) 133 CLR 422
Kolodziejczyk v Grandview Pty Limited [2002] NSWCA 267
Lenz v Trustees of the Catholic Church & Anor [2005] NSWCA 446
Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65
Multiplex Constructions (NSW) Pty Limited v Lopez & Anor [2004] NSWCA 319

PARTIES: Gregory Boskov (Plaintiff)
Barclay Mowlem Construction Limited (Defendant/First Cross-Claimant)
AMP General Insurance Limited (Second Cross-Defendant to Second Cross-Claim)
Murmac Services Pty Limited (Defendant to First Cross-Claim/Second Cross-Claimant)
GIO Workers Compensation (NSW) Limited (First Defendant to Second Cross-Claim)

FILE NUMBER(S): SC 20197/05

COUNSEL: Mr H Marshall SC & Mr D Morgan (Plaintiff)
Mr G Parker (Barclay Mowlem Construction Ltd & AMP General Insurance Ltd)
Ms J Oakley (Murmac Services Pty Ltd)
Mr W P Kearns SC & Mr S Marsh (GIO Workers Compensation (NSW) Ltd)

SOLICITORS: Beilby Poulden Costello (Plaintiff)
Ebsworth & Ebsworth (Barclay Mowlem Construction Ltd & AMP General Insurance Ltd)
McMahons National Lawyers (Murmac Services Pty Ltd)
Sparke Helmore (GIO Workers Compensation (NSW) Ltd)

LOWER COURT DATE OF DECISION: 03/20/2006

- 48 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

28 April 2006

20197 of 2005 Gregory Boskov v Barclay Mowlem Construction Pty Limited

JUDGMENT

1 His Honour: The plaintiff was born in Sofia, Bulgaria, on 20 February 1965 (he is now aged 41 years). In 1969, he came to Australia with his adoptive mother and lived in Perth.

2 In 1980, the plaintiff completed Year 10 and left school. He commenced work as a plasterer. He worked as, inter alia, a plasterer or a dogman until about 1990.

3 An unsuccessful marriage ended in 1995. There was a son of the marriage (he was born in 1991). The plaintiff then experienced alcohol and drug problems (involving the use of heroin) which brought an end to a mini skip business he had conducted. In 1996-97, he spent 10 months in rehabilitation.

4 The plaintiff had another unsuccessful relationship (from which a daughter was born). She is now seven years of age…

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: [2006] NSWSC 168
Decision Date: 28 April 2006

CaseChat Overview and Summary

In the case of Boskov v Barclay Mowlem Construction Limited, the dispute arose between a subcontractor and a head contractor, with the subcontractor alleging that the head contractor was negligent in failing to provide a safe means of access to the workplace. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the head contractor owed a duty of care to the subcontractor in relation to the provision of safe access, particularly in light of statutory provisions and the delegation of such duties.

The court examined whether Regulation 73 of the Occupational Health and Safety Regulations imposed a duty on the head contractor to ensure safe means of access, and if so, whether this duty could be delegated to another party. Additionally, the court considered whether the employer's liability in tort to the head contractor could extend to a duty of care towards the subcontractor. The court's analysis involved interpreting the relevant statutory provisions and determining the extent of the duty of care owed by the head contractor.

In its decision, the court held that Regulation 73 did impose a duty on the head contractor to provide safe means of access to the workplace. However, this duty could be delegated to another party, provided that the delegation was done in a manner consistent with the regulation. The court found that the employer's liability in tort to the head contractor did not necessarily extend to a duty of care towards the subcontractor. The court emphasised that the subcontractor's claim for damages was dependent on establishing a direct duty of care owed by the head contractor to the subcontractor, which was not adequately demonstrated in this case.

The final orders of the court dismissed the subcontractor's claim for damages against the head contractor, ruling that no duty of care was owed by the head contractor to the subcontractor in the circumstances of the case. The court's decision hinged on the interpretation of the statutory provisions and the principles of delegation of duties under occupational health and safety regulations.

Orders