Millington v Wilkie T/as Max Wilkie Plumbing Servicess

This case concerned an appeal from a primary judge's decision regarding an employee's claim for damages for personal injury. The appellant, an employee, had suffered injuries when a ladder he was using was not secured. The respondents were the employer, Max Wilkie Plumbing Services, and the relevant Authority. The dispute centred on whether the employer was liable for the employee's injuries, despite the employee's alleged disobedience of instructions and knowledge of the risks.

The legal issues before the court included whether the primary judge erred in finding a breach of statutory duty under regulations 80(6) and 73 of the Construction Safety Regulations, but failing to enter a verdict for the appellant accordingly. The appellant also argued that the primary judge failed to determine the correct test for the employer's common law duty of care and erred in his approach to assessing a breach of that duty. Further grounds of appeal related to the primary judge's findings concerning statutory duties and the proper basis for verdicts in favour of the respondents. Finally, the appellant challenged the primary judge's costs orders, particularly in light of the employer not giving evidence at the initial arbitration.

The primary judge had found that the appellant's common law claim failed as there was no duty to inform the appellant of what he already knew, and no breach of duty as the appellant had been directed not to climb the ladder. Regarding statutory duties, the primary judge found a breach of regulation 80(6) because the ladder was not secured, and potentially a breach of regulation 73. However, the judge held the employer not liable because the appellant elected to use the ladder in disobedience of instructions and with awareness of the risk. The judge also found in favour of the Authority, attributing the injury to the appellant's misuse of safe equipment. The appeal was dismissed with costs.