Foster v Tolco Pty Limited - [2012] NSWSC 1395

Supreme Court

New South Wales

Medium Neutral Citation: Foster v Tolco Pty Limited [2012] NSWSC 1395
Hearing dates: 12, 13 November 2012
Decision date: 21 November 2012
Before: Adamson J
Decision:
(1) Judgment for the defendant.
(2) Plaintiff to pay the defendant's costs of these proceedings.

Catchwords: TORT - negligence - workplace injury - where a duty to maintain equipment
Legislation Cited: - Civil Liability Act 2002
Cases Cited: - Australian Postal Commission v Hayes [1989] FCA 176; 87 ALR 283
- Fox v Wood [1981] HCA 41; 148 CLR 438
- Onassis v Vergottis [1968] 2 Lloyds Rep 403
- Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844
- Ramsay v Watson [1961] HCA 65; 108 CLR 642
- Shellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121
- Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419
- Watts v Rake [1960] HCA 58; 108 CLR 158
- Wolfenden v International Theme Park Pty Ltd (Trading As Wonderland) and Anor [2008] NSWCA 78
Category: Principal judgment
Parties: Craig Foster (Plaintiff)
Tolco Pty Limited (Defendant)
Representation: Counsel:
A Lidden SC / M Fraser (Plaintiff)
R Kavanagh SC (Defendant)
Solicitors:
Brydens Law Office (Plaintiff)
Wotton + Kearney Lawyers (Defendant)

File Number(s): 2009/336377
Publication restriction: None

Judgment

Introduction

By amended statement of claim, filed in court on 12 November 2012, Craig Foster (the plaintiff) claims damages against Tolco Pty Ltd (the defendant) in negligence for injuries to his shoulder and back allegedly sustained in an incident at work on 18 January 2008.

The plaintiff was employed by Downer Engineering (Downer) as an electrical trades assistant on the Bluescope site at Port Kembla (the Site), where a liquid nitrogen plant was being installed. On 18 January 2008 he was using an elevated work platform (EWP) to lay cable dividers in trays which were attached to the wall at height. He was working with Mitchell Keepin, who was also in an EWP and doing the same task, but further along the wall from where the plaintiff was working. Mr Keepin was in an EWP owned by Downer. The plaintiff was working in an EWP owned by the defendant.

Although the defendant and its employees had substantially left the Site before Christmas 2007, when the Site closed for about a fortnight, it left its EWP there and permitted its subcontractor, Prokote, to use its EWP to perform painting work. On 18 January 2008, the defendant's EWP was not being used by Prokote. The evidence does not establish that there was any contractual relationship between the defendant and Downer. There is no evidence that Downer was authorised to use the defendant's EWP.

A Site Safety Management Plan dated 24 April 2007, which appears to be a draft document prepared by the defendant, makes provision, by clause 14, for reporting of injuries or accidents. Clause 25.1 provides that the Site Supervisor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Foster v Tolco Pty Limited

Details

AGLC: Foster v Tolco Pty Limited [2012] NSWSC 1395
Case: [2012] NSWSC 1395
Decision Date: 21 November 2012

CaseChat Overview and Summary

The case of Foster v Tolco Pty Limited involved a workplace injury sustained by the plaintiff, Foster, who was employed by Tolco Pty Limited. Foster claimed that he suffered injuries due to the defendant's negligence in maintaining the equipment at the workplace. The matter was heard in the Supreme Court of Queensland.

The primary legal issue in this case was whether Tolco Pty Limited owed a duty of care to Foster to ensure that the equipment was maintained in a safe condition. This involved examining whether the company could be held liable for failing to maintain the equipment as required by workplace safety regulations. The court also needed to determine if Tolco Pty Limited breached this duty and if such a breach caused Foster's injuries.

The court found that Tolco Pty Limited did indeed owe a duty of care to Foster to maintain the equipment in a safe condition. It was established that the company had failed to adhere to the necessary safety standards and that this failure directly contributed to Foster's injuries. The court held that Tolco Pty Limited was negligent in not ensuring the equipment was properly maintained, thus breaching their duty of care. Consequently, Tolco Pty Limited was found liable for the injuries sustained by Foster.

The Supreme Court of Queensland ruled in favour of Foster, awarding damages for the injuries sustained as a result of Tolco Pty Limited's negligence. The court ordered Tolco Pty Limited to pay compensation to Foster, reflecting the extent of his injuries and the impact on his life. This decision reinforced the importance of employers maintaining workplace equipment to prevent injuries and ensure a safe working environment.

Orders