Eastside Scaffolding v Kazic

Case [2008] NSWCA 146

New South Wales


Court of Appeal


CITATION: Eastside Scaffolding v Kazic [2008] NSWCA 146
HEARING DATE(S): 15/5/08
 
JUDGMENT DATE: 
25 June 2008
JUDGMENT OF: Hodgson JA at 1; Tobias JA at 2; Bell JA at 3
DECISION: Appeal and cross-appeals dismissed with costs.
CATCHWORDS: TORTS NEGLIGENCE – challenge to judge’s factual finding – alleged failure to give adequate reasons – parol evidence rule not applicable to claim - DAMAGES – significance of inaccurate history given to expert medical witnesses
LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Workers Compensation Act 1987 (NSW)
CATEGORY: Principal judgment
CASES CITED: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Codelfa Construction Propriety Limited v State Rail Authority of New South Wales (1982) 149 CLR 337
Gordon v MacGregor (1909) 8 CLR 316
Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348
House v The King (1936) 55 CLR 499
Inglis v John Buttery & Co (1878) 3 App Cas 522
Jones v Dunkel (1959) 101 CLR 298
Moran v McMahon (1985) 3 NSWLR 700
Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85
The King v The Inhabitants of Cheadle 110 ER 306
PARTIES: Eastside Scaffolding and Rigging Pty Ltd (In Liquidation) (Appellant)
Mesud Kazic (1st Respondent)
GIO Workers Compensation (NSW) Limited (2nd Respondent)
John Holland Pty Limited (3rd Respondent)
Waco Kwikform Limited (4th Respondent)
FILE NUMBER(S): CA 40746/07
COUNSEL: M McCulloch SC / P Gow (Appellant)
J Anderson / J Veloskey (1st Respondent)
J Maconachie QC / S March (2nd Respondent)
R Sheldon (3rd and 4th Respondents)
SOLICITORS: Ebsworth & Ebsworth (Appellant)
Martin Bell & Co Solicitors (1st Respondent)
DLA Phillips Fox (2nd Respondent)
Tress Cox Lawyers (3rd and 4th Respondents)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 585/05
LOWER COURT JUDICIAL OFFICER: Johnstone DCJ
LOWER COURT DATE OF DECISION: 3/10/07





                          CA 40746/07
                          DC 585/2005

                          HODGSON JA
                          TOBIAS JA
                          BELL JA

                          Wednesday 25 June 2008
Eastside Scaffolding & Rigging Pty Limited (in liquidation) v Mesud Kazic & Ors
Judgment

1 HODGSON JA: I agree with Bell JA.

2 TOBIAS JA: I agree with Bell JA.


      BELL JA :

      Introduction

3 Mr Kazic was injured in the course of his employment on 23 February 2002 when he was struck on the head by a piece of scaffolding at a construction site at 1 Margaret Street, Sydney (the site).

4 Mr Kazic brought proceedings in negligence against GIO Workers Compensation (NSW) Limited (his employer, Capital Construction Group Pty Ltd, being in liquidation); John Holland Pty Limited, the head contractor on the site; Waco Kwikform Limited, who subcontracted to supply scaffolding to the site, and Eastside Scaffolding and Rigging Pty Limited, who subcontracted to provide labour to Waco Kwikform for the erection and dismantling of scaffolding on the site.

5 The trial came on before Johnstone DCJ. A central issue at trial was the identity of the employer of the scaffolder whose casual act of negligence led to the piece of scaffolding striking Mr Kazic.…

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Eastside Scaffolding v Kazic [2008] NSWCA 146
Case
[2008] NSWCA 146
Decision Date

CaseChat Overview and Summary

Eastside Scaffolding Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge in favour of Mr Kazic (the respondent). The dispute concerned a claim for damages for personal injury sustained by the respondent, who alleged negligence on the part of the appellant.

The Court of Appeal was required to determine whether the primary judge had erred in their factual findings, specifically concerning the appellant's alleged negligence. A further issue was whether the primary judge had failed to provide adequate reasons for their findings. The court also considered the applicability of the parol evidence rule to the respondent's claim and the significance of any inaccurate history provided to expert medical witnesses in assessing damages.

The Court of Appeal found no error in the primary judge's factual findings or the adequacy of their reasons. The court held that the parol evidence rule did not preclude the respondent from pursuing their claim for negligence. Regarding the expert evidence, the court determined that while there may have been inaccuracies in the history provided to the medical experts, this did not invalidate the primary judge's assessment of damages, as the judge had properly considered the evidence as a whole.

Consequently, the appeal and cross-appeals were dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal and cross-appeals dismissed with 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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