Joseph Galea & Anor v Alex Varga

[2011] HCASL 187

JOSEPH GALEA & ANOR
v
ALEX VARGA
[2011] HCASL 187
S162/2011

1. The respondent, a bricklayer, suffered injury as the result of a workplace accident.  He was employed by Greystanes Bricklaying Pty Ltd ("Greystanes"), a company of which he was a director and sole shareholder.  Immediately before his injury, he was standing with one foot on the railing of a scissor lift and the other on the top of a Besser block wall as he filled the wall with concrete from a hose that was operated by the applicants' employee.  The boom to which the hose was attached suddenly extended, projecting the respondent into the air.  He fell to the ground from a height of five metres and suffered significant injury. 

2. The primary judge (Balla DCJ) found that the accident was caused by the negligent handling of the boom by the applicants' employee.  Her Honour reduced the award of damages by 25% to take into account the contribution that would have been recovered from Greystanes as the respondent's employer[1].  Her Honour made a further 25% reduction on account of the respondent's contributory negligence.  In this regard she was satisfied that the respondent would not have sustained any significant injury or would have sustained much less serious injuries if he had been wearing a properly adjusted safety harness. 

   [1]Workers Compensation Act 1987 (NSW), s 151Z(2).

3. The Court of Appeal of the Supreme Court of New South Wales (Beazley and McColl JJA and Handley AJA) considered that the finding of contributory negligence had not been open in circumstances in which no expert evidence had been led to establish how a safety harness might have prevented or reduced the extent of injury to the respondent[2].

   [2]Varga v Galea [2011] NSWCA 76 at [20], [27]-[31].

4. The applicants seek special leave to appeal from the orders of the Court of Appeal.  They submit that the Court of Appeal erred by failing to take into account the primary judge's advantage in assessing the evidence.  In particular, the applicants complain that the Court of Appeal did not appreciate that the primary judge's finding that "there would have been some part of the scissor lift structure to which a harness could have been attached" was based upon material that she understood to have been conceded by the respondent.  Even if that proposition is made good, it remains that the Court of Appeal's conclusion is not dependent upon the absence of expert evidence concerning the attachment of the harness to the scissor lift structure[3].  The Court of Appeal noted that the respondent was projected into the air on a trajectory that carried him over spear-like metal bars protruding up to 1.2 metres above the wall.  It considered that it was not open to conclude by a process of commonsense reasoning that a safety harness would have been likely to prevent or reduce the extent of injury in the context of this unusual accident.  Such a conclusion would require a technical explanation of the functioning of the harness.  In the absence of such evidence, the Court of Appeal considered that the applicants had failed to establish that Greystanes' was negligent in not providing a harness and that this was a cause of the respondent's injury[4].

   [3]Varga v Galea [2011] NSWCA 76 at [29].

   [4]Varga v Galea [2011] NSWCA 76 at [31].

5. No question of law of general application concerning the requirement for expert evidence to discharge the burden of proving the availability of practical measures to safeguard against risk of injury is raised.  The Court of Appeal applied settled principles to the singular facts of this work accident.  If special leave to appeal were granted there would be insufficient prospects that the appeal would succeed.

6. The application is dismissed.

7. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

J.D. Heydon
26 October 2011 V.M. Bell