M a Partitioning & Ceilings Pty Ltd v Kezic

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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
      This appeal is from a decision rendering a contractor (who in this case is sub-contracted to the ultimate contractor) liable in negligence as a quasi-employer for the injury suffered by its sub-contractor’s employee. It calls into question yet again the degree to which the contractor must be involved in the work of the sub-contractor before the contractor is rendered liable as a quasi employer for injury suffered by the sub-contractor’s employee.

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…

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Details
Case
[2005] NSWCA 414
Decision Date

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

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Ratio Decidendi

Legal Principle Established

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