Multiplex Constructions (NSW) Pty Ltd v Lopez

[2004] NSWCA 319

CITATION:	Multiplex Constructions (NSW) P/L v Lopez & 1 Ors [2004] NSWCA 319
HEARING DATE(S):	25 June 2004
JUDGMENT DATE:	13 September 2004
JUDGMENT OF:	Handley JA at 1; Beazley JA at 12; Santow JA at 13
DECISION:	(1) The appeal is dismissed; (2) The appellant to pay the costs of this appeal.
CATCHWORDS:	LIABILITY - injuries suffered when employee slipped on water and mud on worksite en route to where he was to perform his duties as a bricklayer - whether duty of care owed by appellant/ head contractor to first respondent/ employee of negligent sub-contractor for injuries suffered by that employee - extent and nature of duty of care - if breach occurred was it causative of employee's injury - underlying medical condition - Whether breach of regulation 73 of Construction Safety Act 1912. DAMAGES - appeal against damages awarded, both general and, past and future economic loss.
LEGISLATION CITED:	Construction Safety Act 1912 Construction Safety Regulations 73(2)
CASES CITED:	Davey v Skinner (1960) 61 SR (NSW) 648 H C Buckman and Son Pty Ltd v Flanagan (1974) 133 CLR 422 Stevens v Brodribb Sawmilling Co Limited (1985) 160 CLR 16 TNT Australia Pty Limited v Christie [2003] NSWCA 47
PARTIES :	MULTIPLEX CONSTRUCTIONS (NSW) PTY (Appellant) Camilo LOPEZ (First Respondent) PICT BRICKLAYERS PTY LIMITED (Second Respondent)
FILE NUMBER(S):	CA 40462/03
COUNSEL:	M L WILLIAMS, SC/ R S SHELDON (Appellant) M I BOZIC, SC/ D SHOEBRIDGE (First Respondent) C R R HOEBEN, SC/ C BUTLER (Second Respondent)
SOLICITORS:	Phillips Fox (Appellant) Taylor & Scott (First Respondent) P W Turk & Associates (Second Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2103/01
LOWER COURT JUDICIAL OFFICER :	McLoughlin DCJ

CA 40462/03
DC 2103/01

HANDLEY JA
BEAZLEY JA
SANTOW JA

13 SEPTEMBER 2004

MULTIPLEX CONSTRUCTIONS (NSW) PTY LIMITED v Camilo LOPEZ & 1 Ors

Judgment

1 HANDLEY JA: I have had the benefit of reading the draft judgment of Santow JA in this appeal. With one exception I agree with his Honour’s reasons. His Honour is inclined to the view that the appellant was in breach of the statutory duty under reg 73(2) of the Construction Safety Regulations but in my judgment no such duty was imposed on it in the circumstances of this case.

2 In my respectful view the majority decision in H C Buckman and Son Pty Ltd v Flanagan (1974) 133 CLR 422 (Buckman) establishes that at the relevant time Multiplex was not under an obligation imposed by this regulation.

3 Multiplex was the head contractor on the site and Pict Bricklayers Pty Ltd (Pict) was the bricklaying sub-contractor. At about 10 am on the day in question Mr Boss, the site manager for Multiplex, told Mr O’Sullivan, Pict’s foreman, that it was in order for Pict’s employees to enter the partly constructed building to de-water it with a view to resuming building work in the basement. Multiplex and its employees were not otherwise involved in the de-watering of the basement.