Milios v Austress Freyssinet Pty Ltd

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

2. 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…