Castillo v Presmist Formwork Contractors Pty Ltd

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District Court


New South Wales

Medium Neutral Citation: Castillo v Presmist Formwork Contractors Pty Ltd [2019] NSWDC 6
Hearing dates: 11, 12, 13 September and 2 November 2018
Date of orders: 01 February 2019
Decision date: 01 February 2019
Jurisdiction:Civil
Before: Judge Levy SC
Decision:

1. Verdict and judgment for the plaintiff in the amount of $138,515.06;

 

2. The exhibits are to be returned;

 

3. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order;

 4. Liberty to apply on 7 days’ notice if further or other orders are required, including as to costs.
Catchwords: TORTS – occupier’s liability – injury to labour-hire employee on defendant’s building construction site – plaintiff’s claim of negligence on the part of the defendant – defendant’s claim of contributory negligence on the part of the plaintiff – defendant’s claim of notional negligence of plaintiff’s employer – issues to be determined according to provisions of Civil Liability Act 2002 and s 151Z(2) of the Workers Compensation Act 1987; DAMAGES – assessment of claimed heads of damage
Legislation Cited: Civil Liability Act 2002, s 5B, s 5C, s 5D, s 5E, s 5R, s 5S, s 13, s 15, s 16
Evidence Act 1995, s 60
Uniform Civil Procedure Rules 2005, Sch 7, cl 5(1)(c), r 31.27(1)(c)
Work Health and Safety Act (NSW) 2011
Workers Compensation Act 1987, s 151L, s 151Z, s 152
Cases Cited: Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1
Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Glen v Sullivan [2015] NSWCA 191
Jurox Pty Ltd v Fullick [2016] NSWCA 180
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Penrith City Council v Parks [2004] NSWCA 201
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Category:Principal judgment
Parties: Patricio Castillo (Plaintiff)
Presmist Formwork Contractors Pty Ltd (Defendant)
Representation:

Counsel:
Mr A Campbell (Plaintiff)
Mr W McManus (Defendant)

  Solicitors:
Marshall & Gibson (Plaintiff)
Colin Biggers & Paisley (Defendant)
File Number(s): 2017/138804
Publication restriction: None

Judgment

Table of Contents

Factual background and nature of the case

[1] – [4]

Issues

[5]

Evidence overview

[6] – [7]

Facts emerging from oral evidence

[8] – [31]

The plaintiff

[9] – [13]

Mr Guiseppe Angiletta

[14] – [19]

Mr Iara

[20] – [24]

Mr Cerqueira

[25]

Mr Salvatore Angiletta

[26] – [30]

Dr Conrad

[31]

Findings on disputed matters of fact

[32] – [76]

(1) Plaintiff’s background circumstances

[33]

(2) Plaintiff’s pre-accident medical records

[34] – [36]

(3)…

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Details
Case
[2019] NSWDC 6
Decision Date

CaseChat Overview and Summary

The case of Castillo v Presmist Formwork Contractors Pty Ltd involved a claim by an employee, the plaintiff, against a building contractor, the defendant. The plaintiff alleged that he suffered injuries while working on the defendant’s construction site, and sought damages for negligence on the part of the defendant. The defendant, in turn, claimed that the plaintiff was partly to blame for the incident, and also that the plaintiff’s employer should be held liable for the plaintiff’s alleged contributory negligence. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine the extent of the defendant’s liability for the plaintiff’s injuries, whether the plaintiff’s own actions contributed to the incident, and if the plaintiff’s employer should be held liable under the Workers Compensation Act. The issues were to be resolved under the Civil Liability Act 2002 and s 151Z(2) of the Workers Compensation Act 1987. The court was also tasked with assessing the appropriate amount of damages to be awarded to the plaintiff, considering all the circumstances of the case.

In its judgment, the court found that the defendant was indeed liable for the plaintiff’s injuries, as they had breached their duty of care by failing to ensure the safety of the worksite. The court also determined that the plaintiff’s actions did contribute to the incident, but not to such an extent that it would bar his recovery of damages. The court held that the plaintiff’s employer could not be held liable for the plaintiff’s contributory negligence. The court awarded the plaintiff damages in the amount of $138,515.06, which included compensation for medical expenses, lost wages, and pain and suffering.

The court ordered that the plaintiff’s exhibits be returned and that the defendant pay the plaintiff’s costs of the proceedings on the ordinary basis, unless a party was able to demonstrate entitlement to some other costs order. The court granted liberty to apply on seven days’ notice if further or other orders were required, including in relation to costs.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the amount of $138,515.06;

2. The exhibits are to be returned;

3. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order;

4. Liberty to apply on 7 days’ notice if further or other orders are required, including as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.