Fogg v Kane Constructions (NSW) Pty Limited; Fogg v Les Quatre Musketeers Pty Limited (t/as Plastamasta South Coast) (No. 5)

The case involved a plaintiff, Fogg, who sought damages for personal injury sustained during the course of his employment. Fogg was delivering building materials to a worksite when he fell and suffered a significant leg injury. The defendants were the employer, Kane Constructions (NSW) Pty Limited, the head contractor, and a sub-contractor, Les Quatre Musketeers Pty Limited trading as Plastamasta South Coast. The plaintiff filed a claim against all three defendants, but the sub-contractor raised a limitation defence. The court had to determine whether the plaintiff's claim was statute-barred and if so, against which defendants. Additionally, the court assessed the plaintiff's contributory negligence and calculated damages for non-economic loss, past and future economic loss, and domestic assistance and care.

The primary legal issues before the court were whether the plaintiff's claim was barred by statute under sections 50C and 50D of the Limitation Act 1969 (NSW) and whether the plaintiff's contributory negligence reduced his entitlement to damages. The court also needed to determine the extent of the plaintiff's non-economic loss and economic loss, including past and future economic loss and domestic assistance and care. The court had to assess the liability of each defendant and apportion it accordingly.

The court held that the plaintiff's claim was not statute-barred against the employer and the head contractor. However, the sub-contractor's limitation defence was successful. The court found that the plaintiff was not negligent in contributing to his injury, but his contributory negligence was assessed at 15%. The court determined the damages for non-economic loss to be 40% of the most serious case, amounting to $156,000. For past economic loss, the plaintiff was awarded $115,000, and for future economic loss, the award was $165,000. The court awarded past domestic assistance and care but did not award future domestic assistance and care.

The court's final orders were that the plaintiff's claim against the employer and head contractor was not statute-barred, and liability was established against the sub-contractor. The plaintiff's contributory negligence was assessed at 15%. Damages were awarded for non-economic loss, past and future economic loss, and past domestic assistance and care. The court did not award future domestic assistance and care. The specific amounts for non-economic loss, past and future economic loss, and past domestic assistance and care were detailed in the judgment.