Value Constructions Pty Ltd v Badra [2024] NSWCA 181

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Value Constructions Pty Ltd v Badra [2024] NSWCA 181 Hearing dates: 24 April 2024 Date of orders: 31 July 2024 Decision date: 31 July 2024 Before: Leeming JA at [1]; Kirk JA at [2]; Griffiths AJA at [79] Decision: (1) Appeal upheld in part. (2) The orders made by Cavanagh J on 12 December 2023 are varied as follows: (a) In order 1, the judgment sum is $839,869.04; (b) In order 2, the judgment sum is $619,925.00; (c) In order 3, the judgment sum is $309,562.50. (3) If the parties do not agree on appropriate orders as to costs then: (a) The appellant may file and serve written submissions of up to 3 pages on the issue, along with any evidence relied on, by 5pm on 7 August 2024. (b) The respondents may file and serve written submissions of up to 3 pages on the issue, along with any evidence relied on, by 5pm on 13 August 2024. (c) The appellant may file and serve any reply submissions, of no more than 2 pages, by 5pm on 16 August 2024. Catchwords: NEGLIGENCE — Workplace injury — Where worker fell in a stormwater drain on construction site — Whether accident occurred as alleged — Competing testimony of witnesses — Whether director of appellant knew or ought to have know that the drain was uncovered — Director knew the drain was uncovered NEGLIGENCE — Duty of care — Duty of occupier to employee of subcontractor — Whether it was reasonable for occupier to assume that that a competent contractor would have addressed the risk — Occupier owes a duty to use reasonable care to avoid physical injury to individuals on site — Occupier was negligent NEGLIGENCE — CLA s 5D — Whether the negligence was a necessary condition of the occurrence of the harm — Proximate cause irrelevant WORKERS COMPENSATION — Common law remedies — Workers Compensation Act 1987 (NSW) ss 151A and 151Z — Damages payable by a non-employer — Proper operation of s 151Z(2) — Consensual adjustment of figures Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Workers Compensation Act 1987 (NSW) ss 151A, 151Z Workers Compensation Regulation 2016 (NSW), Sch 7 Cases Cited: A V Jennings Ltd v Thomas [2004] NSWCA 309 Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36 Archer v Hall [1967] 1 NSWR 107 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Badra v Value Constructions Pty Ltd [2023] NSWSC 1307 Badra v Value Constructions Pty Ltd (No 2) [2023] NSWSC 1655 Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141 Felk Industries Pty Limited v Mallet [2005] NSWCA 111 General Cleaning Contractors Ltd v Christmas [1953] AC 180 Gould v Vaggelas [1984] HCA 68; (1984) 157 CLR 215 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 Roads and Traffic Authority v Dederer [2007] HCA 42; (2007) 234 CLR 330 Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Sydney Water Corporation v Abramovic [2007] NSWCA 248 Synergy Scaffolding Services Proprietary Limited v Alelaimat [2023] NSWCA 213; (2023) 326 IR 289 Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Category: Principal judgment Parties: Value Constructions Pty Ltd (Appellant)