Reported Decision: 172 IR 453
New South Wales
Court of Appeal
CITATION: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 HEARING DATE(S): 13 March 2008
JUDGMENT DATE:
27 May 2008JUDGMENT OF: Mason P at 1; Beazley JA at 2; McColl JA at 3 DECISION: 1. Appeal allowed in part. 2. Set aside the primary judge’s assessment of damages of $229,150.08 and in lieu thereof substitute a verdict and judgment for the appellant in the sum of $260,976.48. 3. Respondents to pay 25 per cent of the appellant’s costs of the appeal and appellant to pay 75 per cent of the respondents’ costs of appeal, such orders to be set off one against the other. 4. Appellant to have a certificate under the Suitors' Fund Act 1951 if so entitled in respect of the issue of contributory negligence. CATCHWORDS: NEGLIGENCE — contributory negligence — plaintiff injured when slipped on wet metal rails of truck tyre wash bay — whether failed to take reasonable care for his own safety — held no - EMPLOYER’S LIABILITY — employer’s non-delegable duty of care to employees — plaintiff employee of labour hire firm injured at premises occupied and controlled by third party — employee required to work at multiple third party sites delivering concrete — employer’s system of work did not address risk to employee at such sites — assessment of employer and third party’s respective liability for purposes of s 151Z(2)(c) Workers Compensation Act 1987 — held — discharge of duty required employer to adopt measures by way of warning and/or training to require employee to report dangerous conditions and seek instructions — held employer’s notional liability 20 per cent - DAMAGES — past economic loss — incapacity — future economic loss – whether buffer appropriate where plaintiff had engaged in virtually no remunerative employment prior to obtaining employment with labour hire firm - held yes. LEGISLATION CITED: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Occupational Health and Safety Act 2000
Suitors' Fund Act 1951
Workers Compensation Act 1987
Construction Safety Regulations 1950CATEGORY: Principal judgment CASES CITED: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189
Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520
Carey v Lake Macquarie City Council [2007] NSWCA 4
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
English v Rogers [2005] NSWCA 327
Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74;
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Details
- Case
- [2008] NSWCA 99
- Decision Date
CaseChat Overview and Summary
The case of *Pollard v Baulderstone Hornibrook Engineering Pty Ltd* concerned an appeal to the New South Wales Court of Appeal regarding an employee's injury sustained at a third-party worksite. The appellant, Mr. Pollard, was injured when he slipped on wet metal rails in a truck tyre wash bay. He was employed by a labour hire firm and was required to work at various sites, including those occupied and controlled by third parties like the respondent. The dispute centred on the extent of liability between Mr. Pollard's employer and the third-party site occupier for his injuries.
The primary legal issues before the Court of Appeal were whether Mr. Pollard was contributorily negligent in failing to take reasonable care for his own safety, and the respective liabilities of the employer and the third party for the appellant's injuries, particularly in light of the employer's non-delegable duty of care to its employees. The court also considered the appropriate assessment of damages, including past and future economic loss, and whether a buffer was appropriate given the appellant's limited prior remunerative employment.
The Court of Appeal found that Mr. Pollard was not contributorily negligent. However, it determined that the employer's system of work was deficient as it did not adequately address the risks present at third-party sites. The employer's duty required it to implement measures such as warnings or training to ensure the employee reported dangerous conditions and sought instructions. Consequently, the employer was found notionally liable for 20 per cent of the appellant's injuries. The court also adjusted the primary judge's assessment of damages, increasing the total award and making specific orders regarding the costs of the appeal and a certificate under the Suitors' Fund Act.
The primary legal issues before the Court of Appeal were whether Mr. Pollard was contributorily negligent in failing to take reasonable care for his own safety, and the respective liabilities of the employer and the third party for the appellant's injuries, particularly in light of the employer's non-delegable duty of care to its employees. The court also considered the appropriate assessment of damages, including past and future economic loss, and whether a buffer was appropriate given the appellant's limited prior remunerative employment.
The Court of Appeal found that Mr. Pollard was not contributorily negligent. However, it determined that the employer's system of work was deficient as it did not adequately address the risks present at third-party sites. The employer's duty required it to implement measures such as warnings or training to ensure the employee reported dangerous conditions and sought instructions. Consequently, the employer was found notionally liable for 20 per cent of the appellant's injuries. The court also adjusted the primary judge's assessment of damages, increasing the total award and making specific orders regarding the costs of the appeal and a certificate under the Suitors' Fund Act.
Orders
Orders of the court
1. Appeal allowed in part. 2. Set aside the primary judge's assessment of damages of $229,150.08 and in lieu thereof substitute a verdict and judgment for the appellant in the sum of $260,976.48. 3. Respondents to pay 25 per cent of the appellant's costs of the appeal and appellant to pay 75 per cent of the respondents' costs of appeal, such orders to be set off one against the other. 4. Appellant to have a certificate under the Suitors' Fund Act 1951 if so entitled in respect of the issue of contributory negligence. (per McColl JA with Mason P and Beazley JA agreeing)
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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