Saab v Lecan Constructions Pty Limited (In Liquidation) - [2006] NSWSC 17

CITATION: Saab v Lecan Constructions Pty Limited (In Liquidation) [2006] NSWSC 17

HEARING DATE(S): 5/7/05, 6/7/05, 7/7/05, 8/7/05

JUDGMENT DATE :
3 February 2006

JUDGMENT OF: Bell J at 1

DECISION: 1. Verdict and judgment for the defendant; 2. Verdict and judgment for the cross-defendant on the cross-claim; 3. The plaintiff is to pay the defendant’s costs; 4. The cross-claimant is to pay the cross-defendant’s costs.

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

PARTIES: Peter Saab (Plaintiff)
Lecan Constructions Pty Limited (In Liquidation) (Defendant)
City Formwork Constructions Pty Limited (In Liquidation) (Cross-Defendant)

FILE NUMBER(S): SC 20093/04

COUNSEL: P. R. Hennessy SC / E G Romaniuk (Plaintiff)
S.E. Torrington (Defendant)
L. King SC (Cross-Defendant)

SOLICITORS: Keddies Solicitors (Plaintiff)
Johnstone Robinson Legal (Defendant)
Blake Dawson Waldron (Cross-Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 3 February 2006

20093/04 Peter Saab v Lecan Constructions Pty Limited (In Liquidation) (ABN 66 003 919 257)

JUDGMENT
Introduction

1 BELL J: This is a claim for damages for personal injuries arising out of an incident that is said to have occurred on 8 November 2001 at a construction site located at Lot 98 Saunders Street, Pyrmont (the site). The plaintiff was employed by City Formwork Constructions Pty Limited (in liquidation) (City Formwork), a company of which he was the sole director. City Formwork was providing formwork construction services at the site. The proceedings are brought against, Lecan Constructions Pty Limited (in liquidation) (Lecan), which is said to have been the building contractor responsible for the care, control and management of the site.

2 Causes of action are pleaded in negligence and contract. The proceedings were commenced on 25 March 2004 and are subject to the provisions of the Civil Liability Act 2002 (NSW).

3 The plaintiff pleads that he was descending a plywood access ramp (the access ramp) at the site and that he slipped when a cleat (described as a plastic fillet) attached to the access ramp broke. He claims to have fallen backwards thereby sustaining injury to his lower back including a left centro-lateral disc prolapse at L5-S1. He pleads that Lecan was subject to a duty to take reasonable care for his safety and to provide a safe place for him to work, including a safe system of work and safe plant and equipment. In the alternative, the plaintiff pleads that it was an implied term of the contract between City Formwork and Lecan that Lecan would exercise all reasonable care for the safety of persons associated with and employed by City Formwork and that Lecan was in breach of the implied term in the respects that he particularises as negligent.

4 Lecan brings a cross-claim against City Formwork pleading that City Formwork owed the plaintiff, its employee, a non-delegable duty and that his injuries were occasioned by its negligent breach. Lecan claims contribution and/or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 17
Decision Date: 3 February 2006

CaseChat Overview and Summary

The case of Saab v Lecan Constructions Pty Limited (In Liquidation) [2006] NSWSC 17 involved a claim for damages for personal injuries sustained by the plaintiff, Peter Saab, at a construction site. Saab alleged that he had fallen backwards on a defective plywood access ramp, sustaining a left centro-lateral disc prolapse at L5-S1. Lecan Constructions Pty Limited, the defendant, denied the allegations and brought a cross-claim against City Formwork Constructions Pty Limited, the plaintiff's former employer, for contribution and/or indemnity. The court found that Lecan owed a duty of care to the plaintiff, but that the plaintiff had not established the existence of the access ramp or that he sustained injury by falling backwards as a result of a plastic fillet giving way. The court found the plaintiff's evidence unsatisfactory and rejected his claims for damages for non-economic loss, past economic loss, and future economic loss. The court awarded judgment in favour of the defendant and the cross-defendant, with the plaintiff ordered to pay the defendant's costs and the cross-claimant ordered to pay the cross-defendant's costs.

Orders