Maggiotto Building Concepts Pty Ltd v Gordon - [2001] NSWCA 65

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:

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 Maggiotto Building Concepts Pty Ltd v Gordon 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: [2001] NSWCA 65
Decision Date: 30 March 2001

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

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:	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.