Govic v Boral Australian Gypsum Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0110

JOHN GOVIC	Appellant
v
BORAL AUSTRALIAN GYPSUM LTD	Respondent

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JUDGES:	REDLICH, OSBORN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2015
DATE OF JUDGMENT:	5 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 130
JUDGMENT APPEALED FROM:	Govic v Boral Australian Gypsum Ltd [2014] VCC 1366 (Judge O’Neill)

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ACCIDENT COMPENSATION – Appeal – Workplace injury – Whether defendant in breach of duty to take reasonable care to avoid risk of injury.

STATUTORY DUTY – Whether defendant in breach of statutory duty – Whether worker has a private right of action for breach of regulations made under the Occupational Health and Safety Act2004 – Occupational Health and Safety (Manual Handling) Regulations 1999; Occupational Health and Safety Regulations 2007 considered.

EVIDENCE – Relevance of party’s adoption of facts upon which expert opinion based – Facts establishing unsafe system of work – Recent invention – Allegation first raised in closing address – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr V Morfuni QC with Mr S Loftus	Nowicki Carbone Lawyers
For the Respondent	Mr M F Wheelahan with Mr S E Gladman	Wisewould Mahony Lawyers

redlich JA:

OSBORN JA:
KYROU JA:

1. Mr Govic, the appellant, is a plasterer by trade.  Save for a period during which he worked as a supervisor, he was otherwise engaged by Boral Australian Gypsum Ltd (‘Boral’) between 1997 and November 2010 to work as a ‘repair plasterer’.  His job was to carry out repairs to plaster work which had been damaged by other trades in the course of construction works and to complete final plaster features such as cornices before painting was undertaken at residential building sites. 

1. In November 2010, he ceased work because of degenerative tendonitis in his left and right Achilles tendons. 

1. He subsequently issued proceedings in the County Court claiming damages for these injuries from his employer.  The claim was brought both in negligence and, in the alternative, for breach of statutory duty arising out of occupational health and safety regulations. 

1. The medical evidence was that the appellant was predisposed to degeneration of the tendons in his ankles because he suffered from a congenital bony protrusion at the rear of the heel of each foot, known as Haglund’s deformity. 

1. Activities which involve stretching and stressing of the Achilles tendon were likely to aggravate degeneration in his tendons.  Such activities include walking around job sites on rough ground, lifting heavy loads, climbing steps and ladders, and moving the ankle up and down under stress. 

1. During the trial, by way of a primary defence, Boral maintained that the appellant was a contractor and that it did not owe to him the non-delegable duties of care which it would owe to an employee.  The trial judge rejected this defence[1] and that conclusion is not the subject of dispute on appeal. 

   [1]Govic v Boral Australian Gypsum Ltd [2014] VCC 1366 [129] (’Reasons’).

1. The trial judge nevertheless dismissed the appellant’s…