M a Partitioning & Ceilings Pty Ltd v Kezic - [2005] NSWCA 414

CITATION:
M A Partitioning & Ceilings Pty Ltd v Kezic [2005] NSWCA 414
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
8 November 2005

JUDGMENT DATE:

25 November 2005

JUDGMENT OF:
Santow JA at 1; Bryson JA at 75; Hoeben J at 78

DECISION:
(1) Verdict be entered in favour of the appellant. ; (2) The respondent to pay the appellant’s costs at trial and on appeal.

CATCHWORDS:
LIABILITY - Employee of sub-contractor, a gyprock fixer, injured his back on building worksite where both contractor and sub-contractor were engaged in constructing gyprock partitions and ceilings – whether contractor so involved in injured respondent employee’s work, either directly or through his actual employer’s supervisor, as to be subject to a non-delegable duty of care to that employee - and whether that duty breached in the circumstances – whether TNT Australia Pty Limited v Christie & Ors [2003] NSWCA 47 distinguishable. - BREACH – challenge to factual findings upon which liability based – whether employee supplied with suitable equipment – whether causation made out. - DAMAGES – whether s151Z(2) Workers Compensation Act 1987 applied to reduce damages – whether, according to statutory formula, damages should be reduced by contribution contractor entitled to obtain from sub-contractor, if both found liable.

LEGISLATION CITED:
Workers Compensation Act 1987 s151Z(2)

CASES CITED:
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Bennett v Minister of Community Welfare [1992] 176 CLR 408
Chappel v Hart (1998) 195 CLR 232
Purkess v Crittenden (1965) 114 CLR 164
Samsung Electronics Australia Pty Ltd v Macura [2005] NSWCA 386
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
TNT Australia Pty Limited v Christie & Ors [2003] NSWCA 47
Watts v Rake (1960) 108 CLR 158

PARTIES:
M A PARTITIONING & CEILINGS PTY LTD (Appellant)
Pero KEZIC (Respondent)

FILE NUMBER(S):
CA 40447/04

COUNSEL:
J SIMPKINS, SC/ D A BAKER (Appellant)
G O’L REYNOLDS, SC/ J ANDERSON (Respondent)

SOLICITORS:
Phillips Fox (Appellant)
Martin Bell & Co (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 13554/01

LOWER COURT JUDICIAL OFFICER:
Robison DCJ

CA 40447/04
DC 13554/01

SANTOW JA
BRYSON JA
HOEBEN J
25 NOVEMBER 2005

M A PARTITIONING & CEILINGS PTY LTD v Pero KEZIC

Judgment

1 SANTOW JA:

INTRODUCTION

2 Here, the employee of a sub-contractor, a gyprock fixer, injured his back on a building worksite in which both appellant contractor and the sub-contractor were engaged in constructing gyprock partitions and ceilings. Was the appellant contractor so involved in the injured…

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.

Keep reading for free

Create a free CaseChat account to read M a Partitioning & Ceilings Pty Ltd v Kezic and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWCA 414
Decision Date: 25 November 2005

CaseChat Overview and Summary

The appeal concerned a gyprock fixer, Mr. Kezic, who sustained a back injury while working on a building site. Mr. Kezic was employed by a sub-contractor, and the appellant, M a Partitioning & Ceilings Pty Ltd, was the principal contractor. The dispute centred on whether the appellant owed Mr. Kezic a non-delegable duty of care and, if so, whether that duty had been breached. The case was heard by Santow and Bryson JJA and Hoeben J.

The primary legal issues before the court were whether the appellant, as the principal contractor, was so involved in Mr. Kezic's work, either directly or through his employer's supervisor, as to attract a non-delegable duty of care. The court also had to determine if this duty, if it existed, was breached, and whether the appellant had supplied suitable equipment. Furthermore, the court considered the issue of causation and whether the damages awarded should be reduced under section 151Z(2) of the *Workers Compensation Act 1987* by the amount of contribution the appellant might have been entitled to from the sub-contractor.

The court found that the appellant was not so involved in the injured employee's work as to owe him a non-delegable duty of care. The reasoning focused on the degree of control and involvement the principal contractor had over the specific tasks performed by the sub-contractor's employee. The court distinguished the present case from *TNT Australia Pty Limited v Christie & Ors* [2003] NSWCA 47, indicating that the factual circumstances did not establish the necessary level of control for a non-delegable duty to arise. Consequently, the challenges to the factual findings regarding breach, equipment, and causation were rendered moot.

The court ordered that a verdict be entered in favour of the appellant, and that the respondent pay the appellant's costs at trial and on appeal.

Orders

Orders of the court

(1) Verdict be entered in favour of the appellant. ; (2) The respondent to pay the appellant’s costs at trial and on appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	M A Partitioning & Ceilings Pty Ltd v Kezic [2005] NSWCA 414 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 November 2005
JUDGMENT DATE:	25 November 2005
JUDGMENT OF:	Santow JA at 1; Bryson JA at 75; Hoeben J at 78
DECISION:	(1) Verdict be entered in favour of the appellant. ; (2) The respondent to pay the appellant’s costs at trial and on appeal.

CATCHWORDS:	LIABILITY - Employee of sub-contractor, a gyprock fixer, injured his back on building worksite where both contractor and sub-contractor were engaged in constructing gyprock partitions and ceilings – whether contractor so involved in injured respondent employee’s work, either directly or through his actual employer’s supervisor, as to be subject to a non-delegable duty of care to that employee - and whether that duty breached in the circumstances – whether TNT Australia Pty Limited v Christie & Ors [2003] NSWCA 47 distinguishable. - BREACH – challenge to factual findings upon which liability based – whether employee supplied with suitable equipment – whether causation made out. - DAMAGES – whether s151Z(2) Workers Compensation Act 1987 applied to reduce damages – whether, according to statutory formula, damages should be reduced by contribution contractor entitled to obtain from sub-contractor, if both found liable.
LEGISLATION CITED:	Workers Compensation Act 1987 s151Z(2)
CASES CITED:	Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Bennett v Minister of Community Welfare [1992] 176 CLR 408 Chappel v Hart (1998) 195 CLR 232 Purkess v Crittenden (1965) 114 CLR 164 Samsung Electronics Australia Pty Ltd v Macura [2005] NSWCA 386 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 TNT Australia Pty Limited v Christie & Ors [2003] NSWCA 47 Watts v Rake (1960) 108 CLR 158
PARTIES:	M A PARTITIONING & CEILINGS PTY LTD (Appellant) Pero KEZIC (Respondent)
FILE NUMBER(S):	CA 40447/04
COUNSEL:	J SIMPKINS, SC/ D A BAKER (Appellant) G O’L REYNOLDS, SC/ J ANDERSON (Respondent)
SOLICITORS:	Phillips Fox (Appellant) Martin Bell & Co (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13554/01
LOWER COURT JUDICIAL OFFICER:	Robison DCJ