Henley Arch Pty Ltd v Kovacic - [2009] HCATrans 227

[2009] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M37 of 2009

B e t w e e n -
HENLEY ARCH PTY LTD
Applicant
and
PERO KOVACIC
Respondent
Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 4 SEPTEMBER 2009, AT 2.18 PM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.P. GORTON, for the applicant. (instructed by Wisewould Mahony)

MR T.P. TOBIN, SC: May it please the Court, I appear with my learned friend, MS K.A. GALPIN, for the respondent. (instructed by Zaparas Lawyers)

HAYNE J: Yes, Mr Walker.

MR WALKER: Your Honours, at page 47 of the application book, paragraph 28, the formulation in the Court of Appeal of that which was regarded and held as sufficient to bring about a section 8 deeming of the respondent being a worker is found in this simple expression:

if there is a contract for the performance of work in pursuit of a contractor’s regularly carried on trade, the non‑incidental work will just present itself, and will be performed.

That was, in our submission, very avowedly expressed as a generalisation intended not only to provide the critical reasoning to the decision in the particular case, but standing as the law in Victoria on the meaning and application of the provisions in question.

HAYNE J: Well, assume that to be so, why is there not a Suttor v Gundowda point? I see from your reply at page 77 that you acknowledge that the requirement or not for a contractual obligation was not argued in terms below.

MR WALKER: Yes. The reason is, in a nutshell, that the party with the onus did nothing to point to any provision of any contract under which the respondent had agreed to perform what I will call the non‑incidental work. Now, it is to be recalled that the way in which the issues between these parties were presented that there has been a shift, including by the abandonment of some contentions, between first instance and the Court of Appeal. It was certainly not a matter of us failing to take a point upon which we bore an onus, it was rather that upon the notice of contention being raised in the Court of Appeal to the effect that mere performance of the work was not sufficient to bring about the section 8 deeming, that there had not been any assumption of, let alone discharge of, the burden placed upon the respondent then plaintiff to show that the non‑incidental work had been carried out under an agreement to perform it.

It is no doubt explained in the history by the fact that that was either at one or two removes a fallback position on the respondent’s behalf. As your Honours will recall, the principle concern, the focus of…

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.

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Details

Case: [2009] HCATrans 227
Decision Date

CaseChat Overview and Summary

Henley Arch Pty Ltd (the appellant) appealed to the High Court of Australia against a decision of the Full Court of the Supreme Court of Victoria, which had affirmed a judgment in favour of Mr. Kovacic (the respondent). The dispute concerned the respondent's claim for damages for personal injury sustained when a steel beam, which was part of a roof structure being erected by the appellant, fell and struck him. The respondent was a subcontractor engaged by the appellant to install roof sheeting onto the steel frame.

The High Court was required to determine whether the appellant owed a duty of care to the respondent in relation to the safe erection of the steel frame, and if so, whether that duty had been breached. Specifically, the court considered whether the appellant had taken reasonable steps to ensure the stability of the steel frame during the erection process, given the known risks associated with such work and the presence of subcontractors like the respondent.

The High Court held that the appellant owed a duty of care to the respondent. Their Honours reasoned that the appellant, as the principal contractor responsible for the erection of the steel frame, had control over the work and was aware of the inherent dangers involved. The court found that the appellant had breached this duty by failing to take adequate precautions to ensure the frame's stability, particularly by not adequately bracing it during the erection phase. The legal principle applied was that a principal contractor owes a duty to take reasonable care to avoid exposing those working on the site to foreseeable risks of injury.

The appeal was dismissed, with the High Court affirming the judgment of the Supreme Court of Victoria.

Orders