Badra v Value Constructions Pty Ltd & Ors [2023] NSWSC 1307

Supreme Court New South Wales

Medium Neutral Citation: Badra v Value Constructions Pty Ltd & Ors [2023] NSWSC 1307 Hearing dates: 8, 9, 10, 11, 12, 18 and 19 May 2023 Date of orders: 3 November 2023 Decision date: 03 November 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Judgment for the plaintiff against the first defendant in an amount to be agreed or determined. (2) Judgment for the plaintiff against the second and third defendants in an amount to be agreed or determined. (3) I direct the parties to take steps to reach agreement on the amounts of the judgments, including judgments on the cross claims, within 21 days. (4) I direct that, thereafter, the parties approach my chambers to either have the judgment sums entered or seek to have the matter relisted for further argument. Catchwords: NEGLIGENCE — Workplace injury – where plaintiff fell in a stormwater drain on construction site – where plaintiff's employer uninsured – whether accident occurred as alleged — consideration of contemporaneous records – breach — failure to take care – causation – liability of employer and third-party tortfeasor NEGLIGENCE — Damages — differing statutory schemes – where plaintiff suffered from pre-existing medical conditions – causation – past payments of workers compensation Legislation Cited: Civil Liability Act 2002 (NSW), Part 1A, ss 5B Law Reform Miscellaneous Provisions Act 1946 (NSW), s 5(1)(c) Workers Compensation Act 1987 (NSW), ss 151G, 151H, 151Z(1)(d), 151Z(2) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Graham v Baker (1961) 106 CLR 340 at 347; [1961] HCA 48 Husher v Husher (1999) 197 CLR 138 at 139; [1999] HCA 47 Kelly v Thorn; Monteleone v Thorn (No 8) [2021] NSWSC 118 Lang v The Queen [2023] HCA 29 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Rabay v Bristow [2005] NSWCA 199 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 300; [2007] HCA 42 South West Helicopters Pty Ltd and Another v Stephenson and Others (2017) 98 NSWLR 1 South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Todorovic v Waller (1981) 150 CLR 402 Watts v Rake (1960) 108 CLR 158 at 160; [1960] HCA 58 Category: Principal judgment Parties: Mohamad Badra (Plaintiff) Value Constructions Pty Ltd (First Defendant) MMM Cement Rendering 1 Pty Ltd (Second Defendant) Workers Compensation Nominal Insurer (iCare Workers Insurance) (Third Defendant) Representation: Counsel: H Marshall SC with R Foord and A Schonell (Plaintiff) J Sleight (First Defendant) A Combe (Second and Third Defendants)