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Maricic v Dalma Formwork (Australia) Pty Ltd

Maricic v Dalma Formwork (Australia) Pty Ltd

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New South Wales

Court of Appeal

CITATION: MARICIC v DALMA FORMWORK (AUSTRALIA) PTY LTD & ANOR [2006] NSWCA 174

HEARING DATE(S): 16 June 2006

JUDGMENT DATE:
30 June 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Basten JA at 3

DECISION: (1) Appeal allowed and orders made in the District Court in matter 13478 of 2001, on 8 March 2005, that there be a verdict for the second and third defendants against the plaintiff and that the plaintiff pay their costs, be set aside; (2) In lieu thereof, on the question of liability, there be a finding for the plaintiff as against the second and third defendants; (3) Order that the First and Second Respondents pay the Appellant’s costs of the appeal, including the application for leave to appeal; (4) Dismiss the cross-appeal brought by the Respondents against the Cross-Defendant; (5) Order the Respondents to pay the costs of the Cross-Defendant of the Cross-Appeal, including its costs of the application for leave to appeal; (6) Remit the matter to the District Court for assessment of damages subject to a direction that the damages payable by the Respondents to the Appellant shall be reduced pursuant to s 151Z(2)(c) on the basis that the employer, but for Part 5 of the Workers Compensation Act, would have been held 20% liable for the injury suffered by the Appellant; (7) Grant each of the Respondents a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified, in relation to the costs of the appeal

CATCHWORDS: NEGLIGENCE – duty of care owed by head contractor to subcontractor – employee of subcontractor injured by falling in a penetration in concrete floor – whether the contractor owed a duty to the subcontractor to ensure that its employee was not exposed to unreasonable risk – duty owed by labour hire firm to employee - EVIDENCE – onus of proof – which party had the onus of proving liability of employer for purpose of s151Z(2) of the Workers Compensation Act 1987 (NSW)

LEGISLATION CITED: Workers Compensation Act 1987 (NSW), ss 151H, 151L, 151Z, Part 5, Div 3

CASES CITED: Almeida v Universal Dye Works Ltd (2000) 103 IR 433
Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338
Bourke v Hassett [1999] 1 VR 189
Clout Industrial Pty Ltd (In liq) v Biaida Poultry Pty Ltd (2004) 61 NSWLR 111
Currie v Dempsey (1967) 69 SR(NSW) 116
Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601.
Emoleum (Aust) Pty Ltd v Bond [2004] NSWCA 352
Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423
Gayfer v Leahy (unrep, 14 September 1984
Kondis v State Transport Authority (1984) 154 CLR 672
Oxley County Council v MacDonald [1999] NSWCA 126
Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132
Speirs v Caledonian Collieries Ltd [1957] SR (NSW) 483
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Stewart v Dillingham Constructions Pty Ltd (1974) VR 24
Thompson v Woolworths (Q’land) Pty…

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.

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Details

Case: [2006] NSWCA 174
Decision Date: 30 June 2006

CaseChat Overview and Summary

In *Maricic v Dalma Formwork (Australia) Pty Ltd*, the plaintiff, an employee of a subcontractor, appealed to the Court of Appeal of New South Wales against a District Court decision that found in favour of the head contractor and the labour hire firm. The plaintiff had sustained injuries when he fell into a penetration in a concrete floor on a construction site.

The central legal issues before the Court of Appeal were whether the head contractor owed a duty of care to the subcontractor's employee to ensure they were not exposed to unreasonable risk, and whether the labour hire firm owed a duty of care to the plaintiff. The court also considered the onus of proof regarding the employer's liability for the purposes of section 151Z(2) of the *Workers Compensation Act 1987* (NSW).

The Court of Appeal reasoned that the head contractor did owe a duty of care to the subcontractor's employee, and that this duty had been breached. The court found that the labour hire firm also owed a duty of care to the plaintiff. The court allowed the appeal, setting aside the District Court's verdict and entering a finding for the plaintiff against the second and third defendants (the head contractor and the labour hire firm) on the question of liability. The matter was remitted to the District Court for assessment of damages, with a direction that the damages payable by the respondents to the appellant be reduced by 20% to reflect the employer's contributory liability.

Orders

Orders of the court

(1) Appeal allowed and orders made in the District Court in matter 13478 of 2001, on 8 March 2005, that there be a verdict for the second and third defendants against the plaintiff and that the plaintiff pay their costs, be set aside; (2) In lieu thereof, on the question of liability, there be a finding for the plaintiff as against the second and third defendants; (3) Order that the First and Second Respondents pay the Appellant's costs of the appeal, including the application for leave to appeal; (4) Dismiss the cross-appeal brought by the Respondents against the Cross-Defendant; (5) Order the Respondents to pay the costs of the Cross-Defendant of the Cross-Appeal, including its costs of the application for leave to appeal; (6) Remit the matter to the District Court for assessment of damages subject to a direction that the damages payable by the Respondents to the Appellant shall be reduced pursuant to s 151Z(2)(c) on the basis that the employer, but for Part 5 of the Workers Compensation Act, would have been held 20% liable for the injury suffered by the Appellant; (7) Grant each of the Respondents a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified, in relation to the costs of the 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	MARICIC v DALMA FORMWORK (AUSTRALIA) PTY LTD & ANOR [2006] NSWCA 174
HEARING DATE(S):	16 June 2006
JUDGMENT DATE:	30 June 2006
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 2; Basten JA at 3
DECISION:	(1) Appeal allowed and orders made in the District Court in matter 13478 of 2001, on 8 March 2005, that there be a verdict for the second and third defendants against the plaintiff and that the plaintiff pay their costs, be set aside; (2) In lieu thereof, on the question of liability, there be a finding for the plaintiff as against the second and third defendants; (3) Order that the First and Second Respondents pay the Appellant’s costs of the appeal, including the application for leave to appeal; (4) Dismiss the cross-appeal brought by the Respondents against the Cross-Defendant; (5) Order the Respondents to pay the costs of the Cross-Defendant of the Cross-Appeal, including its costs of the application for leave to appeal; (6) Remit the matter to the District Court for assessment of damages subject to a direction that the damages payable by the Respondents to the Appellant shall be reduced pursuant to s 151Z(2)(c) on the basis that the employer, but for Part 5 of the Workers Compensation Act, would have been held 20% liable for the injury suffered by the Appellant; (7) Grant each of the Respondents a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified, in relation to the costs of the appeal
CATCHWORDS:	NEGLIGENCE – duty of care owed by head contractor to subcontractor – employee of subcontractor injured by falling in a penetration in concrete floor – whether the contractor owed a duty to the subcontractor to ensure that its employee was not exposed to unreasonable risk – duty owed by labour hire firm to employee - EVIDENCE – onus of proof – which party had the onus of proving liability of employer for purpose of s151Z(2) of the Workers Compensation Act 1987 (NSW)
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW), ss 151H, 151L, 151Z, Part 5, Div 3
CASES CITED:	Almeida v Universal Dye Works Ltd (2000) 103 IR 433 Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 Bourke v Hassett [1999] 1 VR 189 Clout Industrial Pty Ltd (In liq) v Biaida Poultry Pty Ltd (2004) 61 NSWLR 111 Currie v Dempsey (1967) 69 SR(NSW) 116 Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601. Emoleum (Aust) Pty Ltd v Bond [2004] NSWCA 352 Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423 Gayfer v Leahy (unrep, 14 September 1984 Kondis v State Transport Authority (1984) 154 CLR 672 Oxley County Council v MacDonald [1999] NSWCA 126 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 Speirs v Caledonian Collieries Ltd [1957] SR (NSW) 483 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Stewart v Dillingham Constructions Pty Ltd (1974) VR 24 Thompson v Woolworths (Q’land) Pty…