Classic Constructions (Aust) Pty Ltd v Fischetti

Case [2015] ACTCA 51


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
Supreme Court Act 1933 (ACT), s 37E, 37N

Occupational Health and Safety (Manual Handling) Regulation 1997 (ACT)

Cases Cited:

Australian Capital Territory v Crowley (2012) 7 ACTLR 142
Bostik Australia Pty Ltd v Liddiard [2009] Aust Torts Reports 82-020
CSR Ltd v Della Maddalena (2006) 224 ALR 1
Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177
Fischetti v Classic Constructions (Aust) Pty Ltd and Vero Insurance Limited [2013] ACTSC 210
Griffiths v Kerkemeyer (1977) 139 CLR 161
J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157
Jones v Dunkel (1959) 101 CLR 298
Leighton Contractors Pty Ltd vFox; Calliden Insurance Limited v Fox (2009) 240 CLR 1
O’Connor v Commissioner for Government Transport (1954) 100 CLR 225
Seage v New South Wales [2008] NSWCA 328
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sydney Water Corporation v Abramovic [2007] NSWCA 248
Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Western Australia v Ward (2002) 213 CLR 1

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:

  1. 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.

  1. 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.

  1. Mr Fischetti agreed to assist Mr D’Ambrosio in removing the concrete from the Nicholls premises and went, at the appointed…

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AGLC
Classic Constructions (Aust) Pty Ltd v Fischetti [2015] ACTCA 51
Case
[2015] ACTCA 51
Decision Date

CaseChat Overview and Summary

Classic Constructions (Aust) Pty Ltd appealed to the Supreme Court of the Australian Capital Territory against a decision of a Master who had found the company liable for personal injuries sustained by Mr Fischetti, an independent contractor engaged by Classic Constructions. The dispute concerned whether Classic Constructions owed Mr Fischetti a duty of care in relation to the workplace injury he suffered.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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