Scalise v Bezzina

[2003] NSWCA 362

NEW SOUTH WALES COURT OF APPEAL

CITATION:      SCALISE v BEZZINA & ORS [2003]  NSWCA 362

FILE NUMBER(S):
40579/2002

HEARING DATE(S):               5 August 2003

JUDGMENT DATE: 12/12/2003

PARTIES:
Pietro SCALISE v Ronald Joseph BEZZINA & Ors

JUDGMENT OF:       Mason P Santow JA Brownie AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 8499/2000

LOWER COURT JUDICIAL OFFICER:     Ainslie-Wallace DCJ

COUNSEL:
Appellant: D T Kennedy SC/ F V Fletcher
1st Respondent: ACA Bridge SC/ SE Torrington
2nd Respondent: PW Neil SC/ DJ Hooke

SOLICITORS:
Appellant: Taylor & Scott
1st Respondent: Deacons
2nd Respondent: Nevill & Edwards

CATCHWORDS:
Negligence - personal injuries - alternative statutory counts under Construction Safety Regulations - plaintiff fell from upper floor of building site - plaintiff's case that there was no fence rejected - plaintiff's case that any fence was defective not considered - rule in Browne v Dunn - sufficient if fair notice of alternative case raised by plaintiff in pleadings, opening and evidence in chief - not necessary for plaintiff to cross-examine all of defendants' witnesses on the point - new trial ordered on all issues (ND)

LEGISLATION CITED:
Occupational Health and Safety Act 1983
Construction Safety Regulations regs 73 and 75

DECISION:
Appeal upheld.  See para 105 for further orders.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40579/2002
DC   8499/2000

MASON P
SANTOW JA
BROWNIE AJA

Friday 12 December 2003

Pietro SCALISE v Ronald Joseph BEZZINA & Ors

JUDGMENT

1. MASON P:           The appellant was injured when he fell approximately six metres to the ground from the second floor of a home unit building site.  He was employed as a concrete finisher by the second respondent, a concreting firm known as General Beton Co Pty Ltd.  The first respondent was a firm (Bezzina Butterfield) that was the head contractor.  The accident occurred on 10 November 1997.

2. The appellant sued the respondents in the District Court pleading a case based on various counts of negligence and breaches of regulation 73 of the Construction Safety Regulations.  The claim failed and there were verdicts for the defendants with costs.

3. The respondents’ case at trial was that adequate protection had been provided by a temporary fence around the perimeter of the second floor (except perhaps for the gap giving access to the landing and stairway).

4. A double brick external façade had been laid to approximately floor level of an otherwise totally exposed second floor.  There was a landing protruding beyond the line of one of the walls giving access to a concrete stairway that zig zagged to the ground below. 

5. On the day of the accident concrete was poured to form the second floor slab.  The formwork included a vertical edge board which rose up from the cavity between the brick work, flush against the outer face of the inner row of bricks (Black 172).

6. Rain had delayed the concrete pour and it was late in the day.  After most of the concreters had been sent home, the appellant set…