SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Classic Constructions (Aust) Pty Ltd v Fischetti |
Citation: | [2015] ACTCA 51 |
Hearing Dates: | 6 November 2014 |
DecisionDate: | 30 September 2015 |
Before: | Murrell CJ, Refshauge ACJ, Burns J |
Decision: | 1. The appeal is upheld and the verdict of the learned Master set aside. 2. In lieu, there will be judgment for Classic Constructions (Aust) Pty Ltd. 3. The parties be heard as to costs. |
Catchwords: | APPEAL – Jurisdiction, practice and procedure – negligence –duty of care – personal injury – workplace injury – independent contractor – not an employee – contributory negligence – risk assessment – assessment of damages |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 100 Occupational Health and Safety Act 1989 (ACT), ss 38, 39 Occupational Health and Safety (Manual Handling) Regulation 1997 (ACT) |
Cases Cited: | Australian Capital Territory v Crowley (2012) 7 ACTLR 142 |
Parties: | Classic Constructions (Aust) Pty Ltd (Appellant) Dominic Fischetti (Respondent) |
Representation: | Counsel Mr J E Sexton SC (Appellant) Mr P Webb QC and Mr D Richards (Respondent) |
| Solicitors Hicksons Lawyers (Appellant) Maurice Blackburn Lawyers (Respondent) | |
File Number(s): | ACTCA 81 of 2013 |
Decision under appeal | Court/Tribunal: Supreme Court of the ACT Before: Master Harper Date of Decision: 26 October 2013 Case Title: Fischetti v Classic Constructions (Aust) Pty Ltd and Vero Insurance Limited Citation: [2013] ACTSC 210 |
THE COURT:
In late December 2005, Dominic Fischetti, the respondent, was asked by John D’Ambrosio, at the request of Michael Tanchevski, director of Classic Constructions (Aust) Pty Ltd (Classic Constructions), the appellant, to assist Mr D’Ambrosio to remove some concrete that had been excised from the driveway of residential premises in Nicholls in the Australian Capital Territory.
Mr Fischetti had worked for Mr D’Ambrosio previously, initially as an employee and later as an independent contractor. His work for Mr D’Ambrosio was done almost entirely for Classic Constructions, for whom Mr Fischetti later worked directly, also as an independent contractor.
Mr Fischetti agreed to assist Mr D’Ambrosio in removing the concrete from the Nicholls premises and went, at the appointed…
Continue reading Classic Constructions (Aust) Pty Ltd v Fischetti
Sign in free to access the full text
- AGLC
- Classic Constructions (Aust) Pty Ltd v Fischetti [2015] ACTCA 51
- Case
- [2015] ACTCA 51
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the Master erred in finding that Classic Constructions owed Mr Fischetti a duty of care, and consequently, whether the Master erred in finding Classic Constructions liable for negligence. The Court was also required to consider whether, if a duty of care was owed, there was contributory negligence on the part of Mr Fischetti, and to reassess the damages awarded.
The Court allowed the appeal, setting aside the Master's verdict. The reasoning focused on the distinction between an employer's duty of care to an employee and the lesser duty owed to an independent contractor. The Court found that the Master had misapplied the principles of negligence in this context, particularly concerning the assessment of risk and the extent of control Classic Constructions exercised over the manner in which Mr Fischetti performed his work. Consequently, the Court determined that no duty of care had been breached. The Court entered judgment for Classic Constructions (Aust) Pty Ltd and ordered that the parties be heard on the issue of costs.
Orders
Orders of the court
1. The appeal is upheld and the verdict of the learned Master set aside.
2. In lieu, there will be judgment for Classic Constructions (Aust) Pty Ltd.
3. The parties be heard 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.