Siljeg v Multiplex Constructions Pty Limited

Case [2004] NSWCA 193
CITATION: Siljeg v Multiplex Constructions Pty Limited & Ors [2004] NSWCA 193
HEARING DATE(S): 28 May 2003
JUDGMENT DATE:
27 July 2004
JUDGMENT OF: Handley JA at 1; Beazley JA at 2; Tobias JA at 3
DECISION: Appeal dismissed with costs
CATCHWORDS: TORTS - Negligence - Vicarious liability - Unsafe system of work - Unsafe place of work - Fall from truck - Scope of employment - reg 73(3) Construction Safety Regulations 1950 (NSW) - 'Building work' - 'Equipping' - PRACTICE AND PROCEDURE - Negligence - Particular of - Not pleaded - Leave to amend - Prejudice
LEGISLATION CITED: Construction Safety Act 1912 (NSW)
Construction Safety Regulations 1950 (NSW)
CASES CITED: Van Der Sluice v Display Craft Pty Limited (2002) NSWCA 204
Australian Iron & Steel Limited v Ryan (1957) 97 CLR 89
H.C. Bushman & Son Pty Limited v Flanagan (1974) 133 CLR 422
Dovak v Anka Builders Pty Limited (1992) 28 NSWLR 1
State of New South Wales & Anor v Thomas (2004) NSWCA 52
Cummings v Lewis (1993) 41 FCR 559
Castellan v Electric Power Transmission Pty Limited [1966] 2 NSWR 104
H C Buckman & Son Pty Limited v Flanagan (1974) 133 CLR 422
Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16

PARTIES :

 Jerko Siljeg
Multiplex Constructions Pty Limited
Dalma Formwork (Australia) Pty Limited
GIO Workers Compensation (NSW) Limited
FILE NUMBER(S): CA 040271/03
COUNSEL: A: Mr Kearns SC / Mr Best
1R: Mr King SC / Mr Glascott
2R & 3R: Mr Taylor SC / Mr Vesper
SOLICITORS: A: Matthews Dooley & Gibson, Blacktown
1R: Phillips Fox, Sydney
2R: James Tuite & Associates, Sydney
3R: Gillis Delaney Brown, Sydney
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 1782/01
LOWER COURT
JUDICIAL OFFICER : 		McGuire DCJ


                          CA 040271/03
                          DC 1782/01

                          HANDLEY JA
                          BEAZLEY JA
                          TOBIAS JA

                          Tuesday 27 July 2004
JERKO SILJEG v MULTIPLEX CONSTRUCTIONS PTY LIMITED & ORS
Judgment

1 HANDLEY JA: I agree with Tobias JA.

2 BEAZLEY JA: I agree with Tobias JA.

3 TOBIAS JA: Jerko Siljeg (the appellant) claimed damages in the District Court of New South Wales from both the first respondent, Multiplex Constructions Pty Limited (Multiplex) and the second respondent, Dalma Formwork (Australia) Pty Limited (Dalma) in respect of injuries sustained by him when, on 1 March 2000, he fell from a truck owned by Dalma, his employer, which was standing on the roadway adjacent to a construction site in Cronulla (the site) occupied by Multiplex as the principal building contractor.

4 Multiplex cross-claimed against Dalma for contribution as a joint tortfeasor and for contractual indemnity under a contract between them pursuant to which Dalma was to supply and erect formwork upon the site. Dalma in turn, cross-claimed against the third respondent, GIO Workers Compensation (NSW) Limited (GIO), pursuant to an insurance policy entitling it to indemnity in respect of any common law liability it may have had to the appellant.

5 On 28 February 2003, McGuire DCJ found in favour of…

Continue reading Siljeg v Multiplex Constructions Pty Limited

Sign in free to access the full text

Details
AGLC
Siljeg v Multiplex Constructions Pty Limited [2004] NSWCA 193
Case
[2004] NSWCA 193
Decision Date

CaseChat Overview and Summary

Siljeg v Multiplex Constructions Pty Limited concerned an appeal from a judgment of the Supreme Court of New South Wales. The appellant, Mr Siljeg, had suffered injuries when he fell from a truck while working on a construction site. He brought proceedings against the respondent, Multiplex Constructions Pty Limited, alleging negligence and vicarious liability for the actions of its employees.

The primary legal issues before the Court of Appeal were whether the respondent had breached its duty of care to the appellant by failing to provide a safe system of work and a safe place of work, and whether the respondent was vicariously liable for the conduct of its employees. The court also considered whether the appellant's claim, which involved allegations of an unsafe system of work and an unsafe place of work, had been adequately particularised in the pleadings, and whether leave to amend the pleadings should have been granted. Further, the court examined the application of regulation 73(3) of the Construction Safety Regulations 1950 (NSW) to the circumstances, specifically whether the work being undertaken constituted "building work" or "equipping" for the purposes of the regulation.

The Court of Appeal found that the trial judge had correctly determined that the respondent was not liable for the appellant's injuries. The court reasoned that the appellant had failed to establish that the respondent had breached its duty of care. It was held that the appellant had not demonstrated that the system of work or the place of work was unsafe, nor had he proven that the respondent was vicariously liable for the actions of its employees. The court also concluded that the pleadings were deficient and that the trial judge had not erred in refusing leave to amend them, as such an amendment would have caused prejudice to the respondent. The court further held that regulation 73(3) of the Construction Safety Regulations 1950 (NSW) did not apply to the facts of the case.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.