M a Partitioning & Ceilings Pty Ltd v Kezic

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.