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Sydney Water Corporation v Abramovic

Sydney Water Corporation v Abramovic

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Case Copied 14 September 2007 57 min read

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Reported Decision: (2007) Aust Torts Reports 81-913

New South Wales

Court of Appeal

CITATION: SYDNEY WATER CORPORATION v ABRAMOVIC and Anor [2007] NSWCA 248

HEARING DATE(S): 19 June 2007

JUDGMENT DATE:
14 September 2007

JUDGMENT OF: Mason P at 1; Santow JA at 2; Basten JA at 55

DECISION: (1) Allow the appeal. ; (2) Set aside the judgment of the Dust Diseases Tribunal against Sydney Water Corporation.

CATCHWORDS: APPEALS – error of law – formulation of scope of duty of care. - NEGLIGENCE – Duty of care – Extent of duty – Safe system of work – Employee of independent contractor, latter uneducated and ignorant of risk and former vulnerable – Exposure of respondent to injury from silica dust while undertaking rock drilling work – Whether duty of statutory authority to ensure by exercise of statutory powers that contractor required use of water dampening and respirators during rock drilling work. - STATUTORY AUTHORITY – Duty of care – Successor to liabilities of statutory authority established under the Metropolitan Water, Sewerage and Drainage Act 1924-1954 (NSW) – Carrying out rock drilling work for Water Board as statutory authority under statutory supervisory powers conferred on Water Board as exclusive authority for carrying out this work. - WORDS AND PHRASES – decision “in point of law”: Dust Diseases Tribunal Act 1989 (NSW), s32(1).

LEGISLATION CITED: Construction Safety Act 1912 (NSW); Construction Safety Regulations 1950 Regulation 73
Dust Diseases Tribunal Act 1989 (NSW), s32(1)
Metropolitan, Water, Sewerage, and Drainage Act 1924-1954 ss32, 34 and 38
Roads Act 1993 (NSW)

CASES CITED: Abramovic v Brambles Australia Ltd & Ors [2005] NSWDDT 30
Amaca Pty Ltd v AB&P Constructions Pty Ltd [2007] NSWCA 220
Amaca Pty Ltd v New South Wales [2004] NSWCA 124, (2004) 132 LGERA 309
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Brodie v Singleton Shire Council (2001) 206 CLR 512
Coote v Forestry Tasmania (2006) 80 ALJR 1089
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Kondis v State Transport Authority (1984) 154 CLR 672
Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200
McArdle v Andmac Roofing Company (1967) 1 WLR 356
McPherson’s Ltd v Eaton (2005) 65 NSWLR 187
Pyrenees Shire Council v Day (1998) 192 CLR 330
Randwick City Council v T&H Fatouros Pty Ltd [2007] NSWCA 177
Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132
Skulander v Willoughby City Council [2007] NSWCA 116
State Rail Authority of New South Wales v Gudgeon [2000] NSWCA 165
Stevens v Brodribb Sawmilling Co Pty Ltd (1985-1986) 160 CLR 16
Sullivan v Moody (2001) 207 CLR 562
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Swain v Waverley Municipal Council (2005) 220 CLR 517
Tame v New South Wales (2002) 211 CLR 317

PARTIES: SYDNEY WATER CORPORATION (Appellant)
Jelka ABRAMOVIC a person appointed to represent the Estate of the late Ante Abramovic (First Respondent)
BRAMBLES AUSTRALIA LIMITED (Second Respondent)

FILE NUMBER(S): CA

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: [2007] NSWCA 248
Decision Date: 14 September 2007

CaseChat Overview and Summary

Sydney Water Corporation appealed to the Court of Appeal of New South Wales against a judgment of the Dust Diseases Tribunal. The dispute concerned the extent of a statutory authority's duty of care towards an employee of an independent contractor engaged to perform rock drilling work. The respondent, an employee of the contractor, had been exposed to silica dust during this work and subsequently developed a dust-related disease.

The primary legal issues before the Court of Appeal were whether Sydney Water Corporation, as the successor to the liabilities of the former Water Board, owed a duty of care to the respondent, and if so, the scope of that duty. Specifically, the court had to determine whether Sydney Water Corporation, through its statutory supervisory powers, was obliged to ensure that the independent contractor implemented safety measures such as water dampening and the use of respirators during rock drilling operations. The court also considered whether the Tribunal had erred in law in its formulation of the scope of this duty of care.

The Court of Appeal found that the Tribunal had erred in law in its assessment of Sydney Water Corporation's duty of care. The court reasoned that while Sydney Water Corporation possessed statutory powers, these powers did not, in themselves, create a positive duty to supervise the contractor's safety practices to the extent that the Tribunal had found. The court applied principles relating to the scope of duties of care owed by statutory authorities, particularly concerning the actions of independent contractors, and concluded that the duty did not extend to mandating specific safety procedures in this instance.

Consequently, the Court of Appeal allowed the appeal and set aside the judgment of the Dust Diseases Tribunal against Sydney Water Corporation.

Orders

Orders of the court

(1) Allow the appeal.; (2) Set aside the judgment of the Dust Diseases Tribunal against Sydney Water Corporation.

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.

CITATION:	SYDNEY WATER CORPORATION v ABRAMOVIC and Anor [2007] NSWCA 248
HEARING DATE(S):	19 June 2007
JUDGMENT DATE:	14 September 2007
JUDGMENT OF:	Mason P at 1; Santow JA at 2; Basten JA at 55
DECISION:	(1) Allow the appeal. ; (2) Set aside the judgment of the Dust Diseases Tribunal against Sydney Water Corporation.
CATCHWORDS:	APPEALS – error of law – formulation of scope of duty of care. - NEGLIGENCE – Duty of care – Extent of duty – Safe system of work – Employee of independent contractor, latter uneducated and ignorant of risk and former vulnerable – Exposure of respondent to injury from silica dust while undertaking rock drilling work – Whether duty of statutory authority to ensure by exercise of statutory powers that contractor required use of water dampening and respirators during rock drilling work. - STATUTORY AUTHORITY – Duty of care – Successor to liabilities of statutory authority established under the Metropolitan Water, Sewerage and Drainage Act 1924-1954 (NSW) – Carrying out rock drilling work for Water Board as statutory authority under statutory supervisory powers conferred on Water Board as exclusive authority for carrying out this work. - WORDS AND PHRASES – decision “in point of law”: Dust Diseases Tribunal Act 1989 (NSW), s32(1).
LEGISLATION CITED:	Construction Safety Act 1912 (NSW); Construction Safety Regulations 1950 Regulation 73 Dust Diseases Tribunal Act 1989 (NSW), s32(1) Metropolitan, Water, Sewerage, and Drainage Act 1924-1954 ss32, 34 and 38 Roads Act 1993 (NSW)
CASES CITED:	Abramovic v Brambles Australia Ltd & Ors [2005] NSWDDT 30 Amaca Pty Ltd v AB&P Constructions Pty Ltd [2007] NSWCA 220 Amaca Pty Ltd v New South Wales [2004] NSWCA 124, (2004) 132 LGERA 309 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Brodie v Singleton Shire Council (2001) 206 CLR 512 Coote v Forestry Tasmania (2006) 80 ALJR 1089 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Kondis v State Transport Authority (1984) 154 CLR 672 Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200 McArdle v Andmac Roofing Company (1967) 1 WLR 356 McPherson’s Ltd v Eaton (2005) 65 NSWLR 187 Pyrenees Shire Council v Day (1998) 192 CLR 330 Randwick City Council v T&H Fatouros Pty Ltd [2007] NSWCA 177 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 Skulander v Willoughby City Council [2007] NSWCA 116 State Rail Authority of New South Wales v Gudgeon [2000] NSWCA 165 Stevens v Brodribb Sawmilling Co Pty Ltd (1985-1986) 160 CLR 16 Sullivan v Moody (2001) 207 CLR 562 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Swain v Waverley Municipal Council (2005) 220 CLR 517 Tame v New South Wales (2002) 211 CLR 317
PARTIES:	SYDNEY WATER CORPORATION (Appellant) Jelka ABRAMOVIC a person appointed to represent the Estate of the late Ante Abramovic (First Respondent) BRAMBLES AUSTRALIA LIMITED (Second Respondent)
FILE NUMBER(S):	CA