Dimkovski v Ken's Painting and Decorating Services Pty Limited and 2 ors

The plaintiff, Dimkovski, was injured in an industrial accident while working for Ken's Painting and Decorating Services Pty Limited. He sued the company and two of its directors for common law negligence and breach of statutory duty under the Occupational Health and Safety Act 2004 (Vic). The defendants argued that the action for breach of statutory duty was excluded by section 56 of the Act, and that evidence of the breach was inadmissible in the common law negligence claim. The case was heard in the Supreme Court of Victoria.

The court had to decide whether the defendants' breach of statutory duty was admissible as evidence in the common law negligence claim, and if so, which facts were admitted by the defendants' plea of guilty to the statutory breach. The court also had to determine the relevance and admissibility of other evidence in the common law negligence claim.

The court held that evidence of the defendants' breach of statutory duty was admissible in the common law negligence claim, as it was relevant to establishing the defendants' knowledge of the risk of injury and their failure to take reasonable steps to prevent it. The court also held that the defendants' plea of guilty to the statutory breach admitted certain facts, such as the existence of the risk and the defendants' knowledge of it, but did not admit all the facts necessary to establish common law negligence. The court further held that other evidence, such as expert evidence on the standard of care and the defendants' failure to comply with it, was also relevant and admissible in the common law negligence claim.

The court found in favour of the plaintiff and awarded damages for common law negligence. The court also noted that the exclusion of the action for breach of statutory duty did not prevent the plaintiff from recovering damages for common law negligence, as the two causes of action were separate and distinct.