Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast)

In the New South Wales Court of Appeal, Hutchison Construction Services Pty Ltd appealed a judgment awarded to Mr Fogg, who had suffered injuries in a slip and fall incident while unloading building materials at a construction site. Mr Fogg had been engaged by Les Quatre Musketeers Pty Ltd (trading as Plastamasta South Coast) as a subcontractor. The primary dispute at trial concerned the circumstances of the fall, with Mr Fogg alleging he was directed to unload materials in an unsafe location, a contention accepted by the trial judge who entered a substantial judgment in his favour. Hutchison Construction Services sought to overturn this judgment, raising several grounds of appeal.

The Court of Appeal was required to determine whether the trial judge had erred in their findings of primary fact, particularly regarding the directions given to Mr Fogg concerning the unloading location. Further issues included whether the trial judge had correctly formulated the duty of care owed by Hutchison Construction Services, properly applied the provisions of the *Civil Liability Act 2002* (NSW), specifically section 5B, and correctly established causation for Mr Fogg's injuries. The court also had to consider whether the trial judge had erred in finding contributory negligence and in apportioning liability between Hutchison Construction Services and Mr Fogg's employer, Les Quatre Musketeers Pty Ltd, as well as in the calculation of damages.

The Court of Appeal dismissed Hutchison Construction Services' appeal, finding no error in the trial judge's core findings of fact or the application of the relevant legal principles. However, the court allowed in part the cross-appeal by Mr Fogg concerning the calculation of damages for future economic loss, indicating a need for recalculation. In relation to the separate appeal by Les Quatre Musketeers Pty Ltd concerning costs, this was allowed in part by consent, with the order for Mr Fogg to pay the defendant's costs being set aside and replaced with an order that each party bear their own costs in the court below. The appeal by Les Quatre Musketeers Pty Ltd was otherwise dismissed, with each party to bear their own costs of that appeal.