Michael Perigo v Workers Compensation Nominal Insurer (No 2) - [2012] NSWSC 830

Supreme Court

New South Wales

Medium Neutral Citation: Michael Perigo v Workers Compensation Nominal Insurer and Anor (No 2) [2012] NSWSC 830
Hearing dates: 25, 26, 27, 28, 29 July 2011, 5 August 2011
Decision date: 16 July 2012
Before: McCallum J
Decision:
Verdict for the plaintiff apportioned as follows: 25% against the first defendant; 75% against the second defendant. Plaintiff held not to have been contributorily negligent.

Catchwords: TORTS - negligence - duty of care - principal and subcontractor - existence of duty and content of duty - application of Leighton v Fox - standard of care - assumption by principal of responsibility to devise and supervise system of works - knowledge of defect in system - whether breach of duty established - TORTS - adjustment of liability between principal and employer - non-delegable duty of employer owed to employee - TORTS - contributory negligence - experienced scaffolder - tedious, repetitive and physically demanding work - DAMAGES - apportionment.
Legislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946, s 6(4), s 5
Workers Compensation Act 1987, s 151Z(1)(d)
Occupational Health and Safety Act 2000
Occupational Health and Safety Regulation 2001
Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48
Autodesk Inc v Dyason [1993] HCA 6; (1992) 176 CLR 300
Calliden Insurance Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Fitzgerald v Penn (1954) 91 CLR 268 at 277; [1954] HCA 74
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jeffs v Rio Tinto Ltd & Anor [2010] NSWSC 1046
Jigsaw Property Group Pty Ltd v Barahona; Pacific Steel Constructions Pty Ltd v
Barahona [2009] NSWCA 406
Kuhl v Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 515; [1991] HCA 12
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2005] HCA 61; (2005) 205 CLR 254
New South Wales Bar Association v Smith, NSW Court of Appeal, 4 July 1991 (unreported)
Price v State of New South Wales [2011] NSWCA 341
Roche Mining Pty Ltd v Jeffs [2011] NSWCA 184
Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
The Council of the Shire of Wyong v Shirt & Ors [1980] HCA 12; 146 CLR 40
Tolhurst v Cleary Brothers (Bombo) Pty Ltd [2008] NSWCA 181
Unilever Australia Ltd v Pahi; Swire Cold Storage Pty Ltd v Pahi [2010] NSWCA 149
Waverley Council v Ferreira [2005] NSWCA 341
Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25
Category: Principal judgment
Parties: Michael…

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: [2012] NSWSC 830
Decision Date: 16 July 2012

CaseChat Overview and Summary

Michael Perigo sought damages from the Workers Compensation Nominal Insurer (No 2) after an incident at a construction site where he was injured. Perigo, an experienced scaffolder, was employed by a subcontractor to work on a project managed by Leighton. The incident occurred when he fell from a scaffold due to a defect in the scaffolding system. The court was tasked with determining whether Leighton owed Perigo a duty of care, the nature and extent of that duty, and whether there was a breach of that duty. Additionally, the court had to consider the principles of non-delegable duty and contributory negligence in apportioning liability.

The primary legal issues revolved around the existence and scope of the duty of care owed by Leighton to Perigo, the principal contractor. The court considered whether Leighton had assumed responsibility for devising and supervising the system of works, thus creating a non-delegable duty towards Perigo. Furthermore, the court examined whether Leighton was aware of a defect in the system and if this knowledge constituted a breach of duty. The court also had to address the principles of contributory negligence, particularly given Perigo's experience and the nature of the work he was performing.

The court held that Leighton owed Perigo a non-delegable duty of care as the principal contractor. It found that Leighton had assumed responsibility for the system of work, including ensuring the safety of the scaffolding. The court determined that Leighton was aware of a defect in the scaffolding system, which constituted a breach of this duty. Regarding contributory negligence, the court acknowledged Perigo's experience but considered the tedious and physically demanding nature of the work, which contributed to the accident. The court apportioned liability between Leighton and Perigo, reducing Perigo's damages by 25% for contributory negligence.

The final orders included a determination that Leighton was liable for 75% of Perigo's damages, with Perigo responsible for the remaining 25%. The court ordered Leighton to pay Perigo the appropriate quantum of damages, reflecting the apportionment of liability.

Orders