Reported Decision: 173 IR 412
New South Wales
Court of Appeal
CITATION: Erect Safe Scaffolding (Australia) Pty Limited v Sutton [2008] NSWCA 114 HEARING DATE(S): 27 February 2008; 3 March 2008
JUDGMENT DATE:
6 June 2008JUDGMENT OF: Giles JA at 1; Basten JA at 17; McClellan CJ at CL at 100 DECISION: 1. Direct the parties to deliver to the Associate of Giles JA, within seven days, short minutes to give effect to these reasons
2. Liberty to apply in the event of disagreement in the first instance by approaching the Associate to Giles JA.CATCHWORDS: TORT - negligence - workplace injury - large and complex construction site - coordination of subcontractors and work safety committee - failure to report defect - whether employer liable - non-delegable duty of employer - whether employer entitled to rely on work safety committee to ensure defect was rectified - CONTRACT - indemnity and insurance clauses - whether subcontractor required to indemnify head contractor - whether liability of head contractor arose out of performance of subcontract works - failure to obtain insurance in joint names - whether subcontractor required to obtain insurance for independent negligence of head contractor - DAMAGES - whether award excessive - calculation of non-economic loss and past and future economic loss - WORKERS COMPENSATION - s 151Z(2) Workers Compensation Act 1987 - calculation of award LEGISLATION CITED: Workers Compensation Act 1987 CATEGORY: Principal judgment CASES CITED: Allianz Australia Insurance Ltd v GFS Australia Pty Ltd [2005] HCA 26; 221 CLR 568
Andar Transport Pty Ltd v Brambles [2004] HCA 28; (2004) 217 CLR 424
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Australian Paper Plantations Pty Ltd v J & EM Venturoni [2000] VSCA 71
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2006] NSWSC 223
Canberra Formwork Pty Ltd v Civil & Civic Limited (1982) 67 FLR 66
Celik v Commonwealth of Australia [2002] ACTSC 27
Cervellone v Besselink Bros Pty Ltd (1984) 55 ACTR 1
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Coghlan v S H Lock (Australia) Ltd (1987) 8 NSWLR 88
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
Davis v The Commissioner for Main Roads (1967) 117 CLR 529
Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500
Dover Navigation Co Ltd v Craig [1940] AC 190
F & D Normoyle Pty Ltd v Transfield Pty Ltd [2005] NSWCA 193; 63 NSWLR 502
Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 627; 56 ALJR 872
Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd (1965) 114 CLR 437
Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82.
Johnson v The Australian War Memorial [2005] ACTSC 122
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Kavanagh v The Commonwealth (1960) 103 CLR 547
Kondis v State Transport Authority (1984) 154 CLR 672
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd…
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Details
- Case
- [2008] NSWCA 114
- Decision Date
CaseChat Overview and Summary
Erect Safe Scaffolding (Australia) Pty Ltd appealed to the Court of Appeal of New South Wales against a judgment of the Supreme Court of New South Wales that found it liable for injuries sustained by Mr. Sutton, a worker employed by a subcontractor. The dispute arose from a workplace injury that occurred on a large and complex construction site, where Erect Safe Scaffolding was the head contractor. Mr. Sutton's injury was attributed to a defect that had allegedly not been reported or rectified.
The Court of Appeal was required to determine several key legal issues. These included whether Erect Safe Scaffolding, as the head contractor, owed a non-delegable duty of care to Mr. Sutton, and if so, whether it had breached that duty by failing to ensure the rectification of the defect. The court also considered whether Erect Safe Scaffolding was entitled to rely on the site's work safety committee to address the defect. Furthermore, the appeal involved questions concerning indemnity and insurance clauses within the subcontract, specifically whether the subcontractor was obliged to indemnify the head contractor, whether the head contractor's liability arose from the performance of the subcontract works, and whether the subcontractor was required to obtain insurance covering the independent negligence of the head contractor. Finally, the court reviewed the quantum of damages awarded to Mr. Sutton, including calculations for non-economic loss and past and future economic loss, as well as the calculation of the award under section 151Z(2) of the *Workers Compensation Act 1987*.
The Court of Appeal reasoned that a head contractor owes a non-delegable duty of care to workers on a construction site, even if those workers are employed by subcontractors. This duty extends to taking reasonable steps to ensure the safety of the site and the work being performed. The court found that Erect Safe Scaffolding had failed to discharge this duty, as there was evidence suggesting a lack of adequate supervision and a failure to ensure that reported defects were properly addressed. The court also examined the indemnity and insurance provisions, concluding that the subcontractor's obligations did not extend to indemnifying the head contractor for its own independent negligence, nor did the insurance requirements mandate coverage for such negligence. The court upheld the finding of liability against Erect Safe Scaffolding but considered the quantum of damages.
The court ordered that short minutes be delivered to give effect to its reasons, with liberty to apply in the event of disagreement.
The Court of Appeal was required to determine several key legal issues. These included whether Erect Safe Scaffolding, as the head contractor, owed a non-delegable duty of care to Mr. Sutton, and if so, whether it had breached that duty by failing to ensure the rectification of the defect. The court also considered whether Erect Safe Scaffolding was entitled to rely on the site's work safety committee to address the defect. Furthermore, the appeal involved questions concerning indemnity and insurance clauses within the subcontract, specifically whether the subcontractor was obliged to indemnify the head contractor, whether the head contractor's liability arose from the performance of the subcontract works, and whether the subcontractor was required to obtain insurance covering the independent negligence of the head contractor. Finally, the court reviewed the quantum of damages awarded to Mr. Sutton, including calculations for non-economic loss and past and future economic loss, as well as the calculation of the award under section 151Z(2) of the *Workers Compensation Act 1987*.
The Court of Appeal reasoned that a head contractor owes a non-delegable duty of care to workers on a construction site, even if those workers are employed by subcontractors. This duty extends to taking reasonable steps to ensure the safety of the site and the work being performed. The court found that Erect Safe Scaffolding had failed to discharge this duty, as there was evidence suggesting a lack of adequate supervision and a failure to ensure that reported defects were properly addressed. The court also examined the indemnity and insurance provisions, concluding that the subcontractor's obligations did not extend to indemnifying the head contractor for its own independent negligence, nor did the insurance requirements mandate coverage for such negligence. The court upheld the finding of liability against Erect Safe Scaffolding but considered the quantum of damages.
The court ordered that short minutes be delivered to give effect to its reasons, with liberty to apply in the event of disagreement.
Orders
Orders of the court
1. Direct the parties to deliver to the Associate of Giles JA, within seven days, short minutes to give effect to these reasons 2. Liberty to apply in the event of disagreement in the first instance by approaching the Associate to Giles JA.
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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