Todorovic v Moussa

Case [2005] NSWCA 100


CITATION:

Todorovic v Moussa [2005] NSWCA 100

HEARING DATE(S):

17 February 2005

 
JUDGMENT DATE: 


11 April 2005

JUDGMENT OF:

Mason P at 1; Tobias JA at 2; Brownie AJA at 75

DECISION:

(1) Appeal allowed; (2) Order that the verdict, judgment and orders made by Taylor DCJ on 8 October 2003 be set aside and in lieu thereof, there be a verdict and judgment for the appellant against the respondents in the amount of $118,529.87 to take effect from 8 October 2003; (3) Order that the respondents pay the appellant's costs of both trials at first instance including all costs associated with the first trial on an indemnity basis; (4) Order that the respondents pay the appellant's costs of the summons for leave to appeal and of the appeal but, if otherwise qualified, to have a certificate under the Suitor's Fund Act 1951.

CATCHWORDS:

INDUSTRIAL LAW - Construction safety legislation - Liability of head contractor - Head contractor on construction site delegated to sub-contractor part of construction work - Sub-contractor fell from ladder put into place by head contractor - Whether head contractor owed sub-contractor statutory duty of providing safe means of access to place where sub-contractor required to work - Whether head contractor engaged in "building work", and therefore "construction work", for purposes of statutory duty or whether head contractor had fully delegated this work to sub-contractor - Construction Safety Regulations 1950 Reg 73 - DAMAGES - Whether assessment of general damages manifestly inadequate - Future economic loss - Assessment of loss of earning capacity - COSTS - Whether costs should be awarded on indemnity basis.

LEGISLATION CITED:

Construction Safety Act 1912
Construction Safety Regulations 1950

CASES CITED:

H C Buckman & Son Pty Limited v Flanagan (1974) 133 CLR 422
Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65
Bhambra v Roet [2003] NSWCA 393
Kolodziejczyk v Grandview Pty Limited [2002] NSWCA 267
Multiplex Constructions (NSW) Pty Limited v Lopez [2004] NSWCA 319
Moran v McMahon (1985) 3 NSWLR 700
State of New South Wales v Moss (2000) 54 NSWLR 536

PARTIES:

Dragan Todorovic
Charlie Moussa
Charlie Moussa & Sons Constructions Pty Limited

FILE NUMBER(S):

CA 40931/03

COUNSEL:

A: B Toomey QC
R: Ian Harrison SC

SOLICITORS:

A: Milena Mijatovich, Fairfield
R: Riley Gray Spencer Lawyers, Sydney

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 886/97

LOWER COURT JUDICIAL OFFICER:

Taylor DCJ



                          CA 40931/03
                          DC 8419/02

                          MASON P
                          TOBIAS JA
                          BROWNIE A-JA

                          Monday 11 April 2005
DRAGAN TODOROVIC v CHARLIE MOUSSA & ANOR
Judgment

1 MASON P: I agree with Tobias JA.

2 TOBIAS JA: This appeal primarily involves, and not for the first time, the ticklish issue of whether, when a head contractor on a construction site delegates part of the construction work to a sub-contractor, the former still owes to the latter the statutory duty referred to in Regulation 73 of the Construction Safety Regulations 1950 made under the Construction Safety Act 1912 (the Act).

3 In the present case, the…

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AGLC
Todorovic v Moussa [2005] NSWCA 100
Case
[2005] NSWCA 100
Decision Date

CaseChat Overview and Summary

The case of *Todorovic v Moussa* concerned a dispute arising from a workplace accident on a construction site. The appellant, Mr. Todorovic, a sub-contractor, suffered injuries when he fell from a ladder that had been erected by the head contractor, the respondent. Mr. Todorovic alleged that the head contractor owed him a statutory duty to provide safe means of access to his work area. The central question was whether the head contractor had engaged in "building work" or "construction work" for the purposes of the relevant safety legislation, or if the work had been fully delegated to the sub-contractor. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the head contractor had breached its statutory duty to provide safe means of access to the place of work. This involved considering whether the head contractor's actions constituted "building work" or "construction work" under the *Construction Safety Regulations 1950*, and whether the delegation of work to the sub-contractor absolved the head contractor of its statutory obligations. Additionally, the court considered whether the initial assessment of general damages awarded to the sub-contractor was manifestly inadequate, and the appropriate assessment of future economic loss and loss of earning capacity. The court also had to decide whether costs should be awarded on an indemnity basis.

The Court of Appeal found that the head contractor had indeed breached its statutory duty. The court reasoned that the head contractor's involvement in erecting the ladder, which was part of the means of access to the work area, meant it was engaged in construction work and therefore owed a duty of care to the sub-contractor. The court determined that the initial assessment of damages was inadequate and recalculated the award. Consequently, the appeal was allowed, the original verdict and judgment were set aside, and judgment was entered for the appellant against the respondents for $118,529.87. The respondents were ordered to pay the appellant's costs of both trials at first instance, including costs for the first trial on an indemnity basis, and the costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed; (2) Order that the verdict, judgment and orders made by Taylor DCJ on 8 October 2003 be set aside and in lieu thereof, there be a verdict and judgment for the appellant against the respondents in the amount of $118,529.87 to take effect from 8 October 2003; (3) Order that the respondents pay the appellant's costs of both trials at first instance including all costs associated with the first trial on an indemnity basis; (4) Order that the respondents pay the appellant's costs of the summons for leave to appeal and of the appeal but, if otherwise qualified, to have a certificate under the Suitor's Fund Act 1951.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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