Brekalo v Sommerauer

[2017] ACTSC 29

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Brekalo v Sommerauer

Citation:

[2017]  ACTSC 29

Hearing Date:

8 February 2017

DecisionDate:

10 February 2017

Before:

Ashford AJ

Decision:

See [ 35 ]

Catchwords:

WORKERS COMPENSATION – ALTERNATIVE RIGHTS AGAINST EMPLOYER AND THIRD PARTIES – injury – persons liable to pay compensation – assessment by agreement – rights and liabilities between employer and third persons.

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) s 21

Cases Cited:

Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16

Sydney Water Corporation v Abramovic [2007] NSWCA 248; (2007) 5 DDCR 570

Parties:

Glenn Sommerauer (Defendant)

Huon Contractors Pty Ltd ((Second) Third Party)

Representation:

Counsel

Mr Lloyd (Defendant)

Mr Muller ((Second) Third Party)

Solicitors

Hicksons (Defendant)

Moray and Agnew ((Second) Third Party)

File Number:

SC 31 of 2015

Ashford AJ:

1. The plaintiff sued the defendant seeking damages arising from a workplace accident which occurred on 14 May 2012.  The principal action settled in the sum of $830,000 and costs, which were agreed at $95,000.  The first third party has also settled its action and it appears the agreement is that it will contribute 20 per cent of the defendant's liability to the plaintiff.  The issue therefore remaining is the defendant's claim against the second third party for indemnity or contribution. 

1. The matters in issue are said to be:

a)    whether the defendant is a tortfeasor liable to the plaintiff;

b)     if so, was a duty of care owed by the second third party to the plaintiff;

c)    if so, was there a breach of duty by the second third party which was causative of loss to the plaintiff; and  

d)    if so, the apportionment of liability between the defendant and the second third party.

1. I am advised by counsel for the defendant that there is agreement the settlement is reasonable and that the defendant's actions on the day of injury were negligent in the operation of the machine, but it is submitted that the second third party (whom I shall refer to as “Huon”) owed a duty of care to the plaintiff and thus has a liability to the plaintiff.  It is submitted there was a breach of a duty of care in that there was a failure by Huon to ensure site safety regulations were observed by the plaintiff in respect of any approach towards heavy machinery and entry to the exclusion zone and the site rules.

1. Glenn Sommerauer, the defendant, gave evidence.  He freely admitted his recollection of events on 14 May 2012 was not as good now as it was at the time surrounding that injury.  Prior to that date he had approached Huon seeking employment.  He was a machine operator of an eight tonne Volvo excavator. 

1. He entered into a subcontract arrangement with Huon some eight months prior to the accident working on a subdivision development.  He started work at 7 am, with smoko at 9.00 to 9.30 am, lunch at around…