Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others [2023] NSWDC 53

District Court New South Wales

Medium Neutral Citation: Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others [2023] NSWDC 53 Hearing dates: 6 – 10, 13 – 16, 20 February 2023 Date of orders: 13 March 2023 Decision date: 13 March 2023 Jurisdiction: Civil Before: Fitzsimmons SC DCJ Decision: In respect to proceedings 2019/392950 – Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others (1) Verdict and judgment for the plaintiff against the first and second defendants in the sum of $216,783.28 together with interest in the sum of $15,000. (2) Verdict and judgment for the cross claimant (Toplace) against the cross defendant (Summit) in the sum of $121,398.64 together with interest in the sum of $8,400. (3) The first and second defendants to pay the plaintiff's costs of the proceedings. (4) The cross defendant to pay the cross claimant's costs of the cross claim.

In respect to proceedings 2020/97924 – Michael Khouri v Toplace Pty Ltd & Others (1) Verdict and judgment for the plaintiff against the first and second defendants in the sum of $520,000. (2) Verdict and judgment for the cross claimant (Toplace) against the cross defendant (Summit) in the sum of $291,200. (3) The first and second defendants to pay the plaintiff's costs of the proceedings. (4) The cross defendant to pay the cross claimant's costs of the cross claim. In respect to proceedings 2021/22054 – Hana Khouri v Toplace Pty Ltd & Others (1) Verdict and judgment for the plaintiff against the first and second defendants in the sum of $217,711.82. (2) Verdict and judgment for the cross claimant (Toplace) against the cross defendant (Summit) in the sum of $114,298.71. (3) The first and second defendants to pay the plaintiff's costs of the proceedings. (4) The cross defendant to pay the cross claimant's costs of the cross claim. In respect to proceedings 2019/392950, 2020/97924 and 2021/22054 (1) The exhibits may be returned. (2) Liberty to apply on 7 days' notice if further orders are required. Catchwords: TORTS – negligence – fall through open penetration on construction site – claims against principal contractor and formwork subcontractor – liability of principal contractor and subcontractor - liability of employer – reduction in damages by reason of employer's negligence – claim for indemnity by employer – s 151Z Workers Compensation Act 1987 – claim for mental harm by mother of injured worker – whether damages for mental harm are reduced by operation of s 151Z(2)(c) – consideration of effect of s 30(4) of Civil Liability Act 2002 on claim for damages for mental harm – assessment of damages for mental harm Legislation Cited: Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D(1), 5R, 15, 16, 30, 30(4) Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(c) Workers Compensation Act 1987 (NSW) Part 5 and ss 151Z(2)(c), s151Z(1)(d) Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420. Jones v Dunkel (1959) 101 CLR 298. Kocis v SE Dickens Pty Ltd [1998] 3 VR 408. Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1. Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406. Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253. Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492. R v A2 [2019] HCA 35; (2019) 269 CLR 507. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182. SZTAL v Minister for Immigration and Border Protection and Anor [2017] HCA 34; (2017) 262 CLR 362. Category: Principal judgment Parties: Proceedings 2019/392950: Ramsay Surveyors Pty Ltd (Plaintiff) Toplace Pty Ltd (First Defendant and Cross Claimant) Summit Formwork NSW Pty Ltd (Second Defendant and Cross Defendant) Steelfixers Australia Pty Ltd CAN 607 321 095 (Third Defendant)