Tarabay v Leite

The appeal concerned a dispute between the plaintiff, Mr Tarabay, and the defendant, Mr Leite, arising from injuries sustained by Mr Tarabay while working on a construction site. Mr Tarabay, an employee of a subcontractor, was injured when a piece of plywood fell on him. He sued Mr Leite, the head contractor, for negligence. The District Court had found Mr Leite liable but also found Mr Tarabay contributorily negligent. The District Court also made a contingent finding on the apportionment of liability between Mr Leite and Mr Tarabay's employer, which was relevant to the operation of s 151Z(2) of the *Workers Compensation Act 1987* (NSW).

The Court of Appeal was required to determine several legal issues. These included whether the District Court erred in its finding of contributory negligence, specifically regarding the plaintiff's vision being obscured by plywood. The court also had to consider the status of the contingent finding on apportionment of liability and whether it should reconsider this apportionment itself. Furthermore, the court was asked to determine issues relating to damages, including the threshold for recovery of gratuitous attendant care services and the requirement for future domestic assistance, as well as the calculation of the reduction of the head contractor's liability under s 151Z(2) of the *Workers Compensation Act 1987* (NSW), taking into account the employer's culpability.

The Court of Appeal applied the principle of restraint, generally deferring to the trial judge's factual findings unless there was a clear error. However, the court found that the District Court had taken parts of the plaintiff's evidence out of context when concluding contributory negligence. Regarding the apportionment of liability, the court determined that it was appropriate to reconsider the contingent finding, noting that the head contractor had a greater responsibility for maintaining a safe site than the employer, who had limited control. The court also addressed the damages claims, applying the relevant provisions of the *Civil Liability Act 2002* (NSW) and the *Workers Compensation Act 1987* (NSW).

The appeal and cross-appeal were each allowed in part. The judgment of the District Court was set aside, and new orders were to be made.