Forstaff Blacktown Pty Ltd v Brimac Pty Ltd

This case concerned an appeal and cross-appeal arising from a District Court judgment concerning negligence and contribution claims. The appellant, Forstaff Blacktown Pty Ltd, was a labour hire firm that had contracted Mr Johnston to work for Brimac Pty Ltd. Mr Johnston suffered an injury while working at Brimac's premises. Brimac had cross-claimed against Forstaff seeking contribution as a joint tortfeasor.

The primary legal issues before the court were whether Brimac owed Mr Johnston a duty of care, whether Brimac had breached that duty, and whether Mr Johnston had been contributorily negligent. Additionally, the court had to determine whether Brimac was entitled to contribution from Forstaff, particularly in light of amendments to the *Workers Compensation Act 1987* that limited damages recoverable from an employer, and whether s 151Z(2) of that Act precluded such contribution.

The court found that Brimac owed Mr Johnston a non-delegable duty of care, akin to that of an employer, given the level of control Brimac exercised over his daily work and the provision of safety equipment and instructions. Brimac's concession that the primary judge correctly concluded it owed a duty was accepted. The court determined that Brimac had breached this duty by failing to take reasonable care to avoid foreseeable risks of injury, considering the possibility of inadvertence. The argument for contributory negligence was rejected, with the court finding that Mr Johnston could not reasonably have foreseen the specific circumstances leading to the accident. Regarding the contribution claim, the court analysed the application of s 151Z(2) of the *Workers Compensation Act 1987* and relevant case law, concluding that the assessment of damages for contribution purposes should be made under the regime applicable at the time the worker's proceedings were commenced.

The appeal and cross-appeal were allowed, setting aside the original verdict and judgment against Forstaff. The court entered a verdict and judgment for Brimac in the sum of $191,471.54, with Brimac to pay 20% of Forstaff's costs of the appeal. The contribution appeal was also allowed, setting aside the verdict and judgment on the cross-claim and entering a verdict and judgment for Forstaff on that cross-claim. Brimac was ordered to pay Forstaff's costs of the contribution appeal and the cross-claim in the District Court.