Milios v Austress Freyssinet Pty Ltd

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District Court


New South Wales

Medium Neutral Citation: Milios v Austress Freyssinet Pty Ltd [2016] NSWDC 348
Hearing dates:23 and 25 November 2016
Date of orders: 02 December 2016
Decision date: 02 December 2016
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Judgment for the Defendant.
(2) Plaintiff pay Defendant’s costs.
(3) Liberty to restore in relation to costs.
(4) Exhibits retained for 28 days.

Catchwords: TORT – negligence – personal injury – workplace accident – plaintiff injured back while stirring a mix of sand and cement without assistance – whether absence of assistance amounted to an unsafe system of work – causation – whether plaintiff’s ongoing disabilities resulted from the work injury or subsequent employment accident – credit issues in relation to damages – application on first day of hearing for order pursuant to s 318(1)(c) Workplace Injury Management and Workers Compensation Act 1998 (NSW) in relation to plaintiff’s expert report – application to exclude the plaintiff’s report not brought during the hearing – application by defendant to reopen case to bring application to exclude report after judgment reserved – both experts made the same factual errors and their findings were accordingly of no weight – judgment for the defendant
Legislation Cited: Civil Liability Act 2002 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Occupational Health and Safety Regulations 2001 (NSW), cl 9, 10, 11, 13, 14 and 16
Workers Compensation Act 1987 (NSW), ss 151D and 151L
Cases Cited: Cicino v F & C Tassone & Sons Pty Ltd [2016] NSWDC 191
Czatyrko v Edith Cowan University (2009) 214 ALR 349
EB v CT (No 2) [2008] QSC 306
Liftronic Pty ltd v Unver (2001) 75 ALJR 867
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Nominal Defendant v Kostic [2007] NSWCA 14
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471
Van der Sluice v Display Craft Pty ltd [2002] NSWCA 204
White v Logen Pty Ltd As Trustee for the Byrn Family Trust [2014] NSWCA 159
Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:Principal judgment
Parties: Plaintiff: Andrew Milios
Defendant: Austress Freyssinet Pty Ltd
Representation:

Counsel:
Plaintiff: Mr T Meakes
Defendant: Mr H Halligan

  Solicitors:
Plaintiff: Paramount Compensation Lawyers
Defendant: Rankin Ellison Lawyers
File Number(s):2015/72511
Publication restriction:None

Judgment

Introduction

  1. The plaintiff brings proceedings pursuant to the common law provisions of the Workers Compensation Act 1987 (NSW) (“the Act”) for injuries suffered in the course of his employment by the defendant at a construction site in Pyrmont on 12 March 2007.

The circumstances of the plaintiff’s accident

  1. The circumstances of the accident were as follows. The plaintiff was told by his supervisors that the builders were “pushing us to get ahead of schedule” and that it was necessary to “finish sealing that deck so we can get ahead…

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Details
Case
[2016] NSWDC 348
Decision Date

CaseChat Overview and Summary

The plaintiff, Mr Milios, brought an action against Austress Freyssinet Pty Ltd, his employer, alleging that he was injured at work in circumstances that amounted to a breach of statutory duty under the Occupational Health and Safety Act 2000 (NSW). The plaintiff claimed that he had sustained a back injury while manually stirring a mixture of sand and cement, and that this injury had caused him ongoing disabilities. The case was heard in the District Court of New South Wales.

The central issues before the court were whether the absence of assistance in stirring the mixture constituted an unsafe system of work, and whether the plaintiff’s ongoing disabilities were a result of the workplace incident or a subsequent accident at work. Additionally, the court needed to address issues relating to the admissibility of the plaintiff's expert report and the defendant's application to reopen the case to challenge the report.

The court found that there was no breach of statutory duty by the defendant as the absence of assistance did not constitute an unsafe system of work. Furthermore, the court held that the plaintiff's ongoing disabilities were not a result of the workplace incident but rather from a subsequent accident at work. The court also rejected the application to exclude the plaintiff's expert report and dismissed the defendant's application to reopen the case. Both experts had made the same factual errors, rendering their findings unreliable.

The court made a judgment in favour of the defendant, ordering the plaintiff to pay the defendant's costs and granting liberty to restore in relation to those costs. The exhibits were retained for 28 days.

Orders

Orders of the court

(1) Judgment for the Defendant.

(2) Plaintiff pay Defendant’s costs.

(3) Liberty to restore in relation to costs.

(4) Exhibits retained for 28 days.

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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