Maggiotto Building Concepts Pty Ltd v Gordon

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CITATION: Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65
FILE NUMBER(S): CA 40922/99
HEARING DATE(S): 22/03/01
JUDGMENT DATE:
30 March 2001

PARTIES :


Maggiotto Building Concepts Pty Limited v Desmond Gordon
JUDGMENT OF: Meagher JA at 1; Stein JA at 2; Ipp AJA at 3
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) :
6569/97
LOWER COURT
JUDICIAL OFFICER :
Delaney DCJ
COUNSEL: (Appellant): J S Drummond
(Respondent): S L Walmsley SC/R Taylor
SOLICITORS: (Appellant): Michell Sillar
(Respondent): Stoikovich & Banfield
CATCHWORDS: PERSONAL INJURY - workplace injury - double storey unit, no staircase, scaffolding or other means of access - STATUTORY DUTY - breach - Construction Safety Act 1912 - Construction Safety Regulations 1950 reg 73 - whether regulation applies to a head contractor - where preliminary work to be carried out by head contractor, head contractor liable - where a head contractor participates in faulty construction work it will be liable to independent contractors - whether a person is bound by the regulations will depend on whether a person is actually carrying out building work - breach of regulations found - voluntary assumption of risk and contributory negligence no answer to breach of statutory duty - CONTRACT - breach of implied duty - term implied by operation of law for employer to take reasonable care for employees safety - no facts to support express agreement overriding implied term - breach of implied term found - voluntary assumption of risk and contributory negligence do not apply to breach of contract - DAMAGES - quantum - whether psychiatric injury caused by accident - findings of trial judge on quantum upheld. D
LEGISLATION CITED: Construction Safety Regulations 1950
Construction Safety Act 1912 (NSW)
CASES CITED:
H C Buckman and Son Pty Limited v Flannagan (1974) 133 CLR 422
Davey v Skinner [1961] SR (NSW) 648
Hetherington v Mirvac Pty Limited [1999] NSWSC 443
Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264
Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57
Johnstone v Bloomsbury Health Authority [1992] 1 QB 333
Stevens v Brodribb Sawmilling Company Limited (1985) 160 CLR 16
Bowater v Rowley Regis Corporation [1944] KB 476
Tingle v J B Hinz and Sons [1970] Qd R 108
King v Commissioner for Railways [1971] Qd R 266
Astley v Austrust Limited (1999) 197 CLR 1
DECISION: Appeal dismissed. Cross appeal upheld. Verdict for $230,396 set aside and judgment for respondent and a verdict in the sum of $460,792. Appellant to pay the respondent's costs of the trial, appeal and cross appeal, and in regard to the cross appeal the appellant to have a certificate under the Suitors Fund Act 1951.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40922/99


DC 6569/97



MEAGHER JA


STEIN JA


IPP AJA


Friday 30 March 2001

MAGGIOTTO BUILDING CONCEPTS PTY LIMITED v DESMOND GORDON

JUDGMENT

1    MEAGHER JA: I agree with Ipp AJA.

2    STEIN JA: I Agree with Ipp AJA.

3    IPP AJA:


      The accident of 23…
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Details
Case
[2001] NSWCA 65
Decision Date

CaseChat Overview and Summary

Maggiotto Building Concepts Pty Ltd (the appellant) appealed a decision of the Supreme Court of New South Wales, which had found it liable for injuries sustained by Mr. Gordon (the respondent) while working on a construction site. The dispute arose from Mr. Gordon's fall from a double-storey unit that lacked a staircase or other safe means of access, resulting in a workplace injury. The appeal was heard by Meagher and Stein JJA, and Ipp AJA.

The court was required to determine whether the appellant, as the head contractor, had breached its statutory duty under the *Construction Safety Act 1912* and *Construction Safety Regulations 1950*, specifically regulation 73, by failing to provide adequate safety measures. Additionally, the court had to consider whether the appellant had breached an implied contractual duty to take reasonable care for the safety of independent contractors working on the site. The appellant also sought to rely on defences of voluntary assumption of risk and contributory negligence.

The court found that regulation 73 of the *Construction Safety Regulations 1950* applied to the head contractor, particularly as the appellant was involved in preliminary work and participated in the faulty construction. The court held that a person is bound by the regulations if they are actually carrying out building work, which the appellant was. Consequently, a breach of the regulations was established. The court further determined that voluntary assumption of risk and contributory negligence were not defences to a breach of statutory duty. Regarding the contractual claim, the court found a breach of the implied term that an employer must take reasonable care for the safety of those working for them, and that no facts supported an express agreement overriding this implied term. Similar to the statutory duty claim, voluntary assumption of risk and contributory negligence were not applicable to a breach of contract.

The appeal was dismissed, but the cross-appeal was upheld. The original verdict for $230,396 was set aside, and judgment was entered for the respondent with a verdict of $460,792. The appellant was ordered to pay the respondent's costs of the trial, appeal, and cross-appeal, with the appellant to receive a certificate under the *Suitors Fund Act 1951* in relation to the cross-appeal.

Orders

Orders of the court

Appeal dismissed. Cross appeal upheld. Verdict for $230,396 set aside and judgment for respondent and a verdict in the sum of $460,792. Appellant to pay the respondent's costs of the trial, appeal and cross appeal, and in regard to the cross appeal the appellant to have a certificate under the Suitors Fund Act 1951.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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