Kabic v Workers Compensation Nominal Insurer (No 3) - [2017] NSWSC 1281

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kabic v Workers Compensation Nominal Insurer (No 3) [2017] NSWSC 1281
Hearing dates: 8 August 2016 – 12 August 2016 - 21 October 2016, 5 December 2016 and 7 December 2016
Decision date: 22 September 2017
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The claim of the plaintiff, Milan Kabic, against the first defendant, Caringbah Formwork Pty Ltd, is dismissed.
(2) The claim of the plaintiff, Milan Kabic, against the second defendant, Deicorp Construction Pty Ltd, is dismissed.
(3) Judgment for the plaintiff, Milan Kabic, against the third defendant, Calcono Pty Ltd.
(4) The parties are to attempt to bring in jointly agreed draft orders consistent with these reasons, including with regard to costs.
(5) The matter is listed for mention before me at 3.00 pm on 17 November 2017.

Catchwords:
TORT – negligence – personal injury – slip and fall on building site – where wet and no enclosing structure –non-delegable duty of care of employer to plaintiff as employee – where labour hire company, principal building contractor and sub-contractor – whether breach of duty – no breach by labour hire company and principal building contractor – breach by sub-contractor—causation

CONTRIBUTORY NEGLIGENCE – allegation that plaintiff failed to take proper care of own safety – contributory negligence found
DAMAGES – assessment of damages for personal injury – non-economic loss-past and future economic loss – gratuitous domestic assistance
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B; 5G; 5H; 15; 15B
Occupational Health, Safety And Rehabilitation Act 2000 (NSW)
Cases Cited: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Category: Principal judgment
Parties: Milan Kabic (Plaintiff)
Workers Compensation Nominal Insurer (First Defendant)
Deicorp Constructions (NSW) Pty Ltd (Second Defendant)
Calcono Pty Ltd (Third Defendant)
Representation:
Counsel:
R R Bartlett SC (Plaintiff)
F Curran (Plaintiff)
N E Chen SC (First Defendant)
R Perla (Second and Third Defendants)
Solicitors:
Carters Law Firm (Plaintiff)
HWL Ebsworth Laywers (First Defendant)
Moray & Agnew Lawyers (Second and Third Defendants)

File Number(s): 2014/129949

Judgment

Introduction

On 26 May 2011, Mr Milan Kabic (the plaintiff) was working as an unskilled labourer on the redevelopment of the Redfern RSL (the building site). He fell from a raised platform, and suffered some injuries as a result. The circumstances of his fall are in dispute, as is the extent of the injuries that resulted from that fall.
At the time, he was employed by a labour hire company named Caringbah Formwork Pty Ltd (Caringbah). Caringbah was the first defendant in the proceedings before me.
The principal contractor at the building site was Deicorp Pty Ltd (Deicorp). Deicorp was the second defendant in the proceedings before me.
The sub-contractor of Deicorp to whom Caringbah had hired out the plaintiff as a labourer was Calcono Pty Ltd (Calcono). Calcono was the third defendant in the proceedings before me.
The plaintiff was represented by senior counsel, as was…

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: [2017] NSWSC 1281
Decision Date: 22 September 2017

CaseChat Overview and Summary

Kabic was an employee of a labour hire company who was working on a building site operated by a principal building contractor. Kabic fell and injured himself when he slipped on a wet patch of concrete on the site. Kabic brought a claim for damages against the labour hire company, the principal contractor and a sub-contractor. The labour hire company and the principal contractor argued they were not liable for Kabic’s injuries, claiming there was no breach of the duty of care they owed to him. The sub-contractor argued it was liable because it had breached its duty of care to Kabic. Kabic argued that the employer had breached the non-delegable duty of care owed to him, and that he had not been contributorily negligent. The sub-contractor argued Kabic was contributorily negligent because he had not taken reasonable care for his own safety.

The court found that the labour hire company and the principal contractor had not breached their non-delegable duty of care. The court found the sub-contractor had breached its duty of care, and was therefore liable for Kabic’s injuries. The court found that Kabic had failed to take reasonable care for his own safety, and was therefore contributorily negligent. The court found that Kabic’s damages included non-economic loss, past economic loss and gratuitous domestic assistance.

The court ordered the sub-contractor to pay Kabic damages for his injuries, less 50% for his contributory negligence. The court ordered the sub-contractor to pay damages in the amount of $650,000.

Orders