Libreri v Ironidol Pty Ltd

NEW SOUTH WALES COURT OF APPEAL

CITATION:      LIBRERI v IRONIDOL PTY LTD & ORS [2006]  NSWCA 266

FILE NUMBER(S):
40693/05

HEARING DATE(S):               9 August 2006

DECISION DATE:     28/09/2006

PARTIES:
Steven LIBRERI
IRONIDOL PTY LTD & ORS

JUDGMENT OF:       Mason P Beazley JA Basten JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 13263/01

LOWER COURT JUDICIAL OFFICER:     Rolfe DCJ

COUNSEL:
Appellant: S Norton SC/ E Walsh
Respondent: L King SC/ M Robinson

SOLICITORS:
Appellant: Brydens Law Office
Respondent: Wootton & Kearney

CATCHWORDS:
NEGLIGENCE – Employer’s liability for – Non-economic loss, future economic loss – Superannuation – Impact of Workers Compensation Act 1987 and Civil Liability Act 2002 (ND)

LEGISLATION CITED:
Workers  Compensation Act 1987
Civil Liability Act 2002

DECISION:
The parties are directed to file draft orders to give effect to these reasons within 7 days, failing which each party is to file, within a further 7 days, his or its proposed orders accompanied by submissions as to the points of difference.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40693/05
DC 13263/01

MASON P
BEAZLEY JA
BASTEN JA

Thursday 28 September 2006

Steven LIBRERI v IRONIDOL PTY LTD & ORS

JUDGMENT

1. MASON P:  The appellant was injured at work on 6 June 2000 when he was struck by an object thrown from an the upper floor of a building site.  He sued his own employer, the man who threw the object (Mr Foschini) and that man's employer.  At the commencement of the hearing in the District Court, the judge was informed that breach of duty of care was admitted by all three defendants and that the defendants had agreed amongst themselves as to the proportion in which each bore responsibility, in terms of liability, for the injury and loss suffered by the appellant.  The Court was further informed that most heads of damages had been agreed.  What remained to be determined were claims for non-economic loss, future out-of-pocket expenses and future wage loss, including superannuation.

2. The damages payable by the first defendant had to be assessed in accordance with the Workers Compensation Act 1987.  The damages payable by the second and third defendants had to be assessed in accordance with the Civil Liability Act 2002 because those parties were joined after Part 2 of that Act commenced.

3. The appellant was working as a dogman and rigger.  His employer, the first respondent, owned a mobile crane needed at the building site.  Terrace houses were being built and the crane was being used to lift building materials to and from the upper floors.  At the time of the accident the appellant was working on level two.

4. Tile pallets have a four-part base, each part of which is made of hardwood.  The whole base is about one and a half metres by two metres in area.  All four parts have sides, so that when one stands back and looks at the whole pallet, it looks like a large crate.

5. The appellant said that…