Maggiotto Building Concepts Pty Ltd v Gordon

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.