Troy v T.J. Green Constructions Pty Ltd - [2004] NSWSC 115

CITATION: Troy v T.J. Green Constructions Pty Ltd [2004] NSWSC 115

HEARING DATE(S): 14/04/2004, 15/04/2004, 16/04/2004, 19/04/2004, 21/06/2004

JUDGMENT DATE:
2 July 2004

JUDGMENT OF: Hislop J

DECISION: 1. Verdict for the plaintiff against the defendant in the sum of $491,635.12; 2. Judgment for the plaintiff against the defendant in the sum of $364,391.94; 3. Verdict and judgment for the cross defendant on the cross claim; 4. The defendant to pay the costs of the plaintiff and the cross defendant.

CATCHWORDS: Tort - Negligence - Employer's duty of care - Identification of employer - Construction site - Head contractor not liable - Contributory negligence - Damages.

LEGISLATION CITED: Industrial Relations Act 1996 - s 127(2)
Law Reform (Miscellaneous Provisions) Act 1946 - s 5(1)(c)
Workers Compensation Act 1987- ss 151G, 151M

CASES CITED: El Tarraf v Linknarf Ltd [2004] NSWSC 244
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872
Ghunaim v Bart [2004] NSWCA 28
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
McLean v Tedman (1984) 155 CLR 306
Medlin v State Government Insurance Commission (1994 - 95) 182 CLR 1
State of New South Wales v Moss (2000) 54 NSWLR 536
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Toga Building Co Pty Ltd v Karhugh Pty Ltd NSWCA, 25 July 1996, unreported

PARTIES :
Craig Troy - Plaintiff
T.J. Green Constructions Pty Ltd - Defendant
Grindley Constructions Pty Ltd - Cross Defendant

FILE NUMBER(S): SC 20945/01

COUNSEL: Mr J Gormly SC with Mr D Toomey - Plaintiff
Mr K Rewell SC with Mr J de Berg - Defendant
Mr R Gray - Cross-Defendant

SOLICITORS: Mr M Short - Slater & Gordon (Plaintiff)
Mr M Schroeder - Keddies (Defendant)
Mr S Constance - Curwood & Partners (Cross-Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Hislop J

2 July 2004

20945/01 Craig Troy v T J Green Constructions Pty Ltd

JUDGMENT

1 HISLOP J: The plaintiff was a bricklayer. In late January 2001 he commenced employment as such with the defendant at a construction site in Pyrmont, New South Wales where three residential towers were under construction. The cross-defendant was the head contractor on the site.

2 On Monday 12 February 2001, the plaintiff had been working in and about an apartment in one of the towers. During the course of that morning, other employees of the defendant erected an internal block wall in the apartment. It took between 1-2 hours to erect the wall from the floor to within 20 mm of the ceiling, the space at the top being left to enable fire retardant to be placed in the gap. The wall was completed at about 1.30 pm.

3 The wall was built of solid concrete blocks measuring 290 x 170 x 90mm. At the time of erection, the blocks were wet from rain. The wall was approximately 2.7 metres high.

4 The wall formed one side of a passageway leading to the…

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: [2004] NSWSC 115
Decision Date: 2 July 2004

CaseChat Overview and Summary

The plaintiff, Troy, brought an action against T.J. Green Constructions Pty Ltd, alleging negligence in relation to injuries sustained on a construction site. The dispute centred on whether the defendant, as the head contractor, owed a duty of care to the plaintiff and whether the head contractor could be held liable for the actions of a subcontractor. Additionally, the case involved a claim for contributory negligence by the plaintiff and a subsequent assessment of damages. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were the identification of the employer under the relevant statutory provisions and whether the head contractor could be held vicariously liable for the negligence of a subcontractor. The court also needed to determine if the plaintiff's actions contributed to his injuries and, if so, how this would impact the assessment of damages. The court had to consider relevant statutory provisions, case law on vicarious liability, and principles of contributory negligence.

The court held that the head contractor was not the employer of the plaintiff for the purposes of vicarious liability under the statutory provisions. The court found that the subcontractor was the employer and, therefore, the head contractor could not be held liable for the subcontractor's negligence. The court also found that the plaintiff had been contributory negligent in his actions, which contributed to his injuries. The court reduced the damages awarded to the plaintiff by the proportion of his contributory negligence. The court dismissed the plaintiff's claim against the head contractor and awarded damages reflecting the plaintiff's contributory negligence.

The final orders of the court were that the plaintiff's claim against T.J. Green Constructions Pty Ltd be dismissed, and that the plaintiff recover damages from the subcontractor, reduced by the proportion of his contributory negligence. The court also ordered that costs be awarded to the defendant.

Orders