Scott Cole v DIB Group trading as DIB Group Pty Limited trading as Hill & Co & Anor [2008] NSWDC 201

New South Wales District Court

CITATION: Scott Cole v DIB Group trading as DIB Group Pty Limited trading as Hill & Co & Anor [2008] NSWDC 201

HEARING DATE(S): 15 -16 September 2008

JUDGMENT DATE: 19 September 2008

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: Verdict for the plaintiff against the first defendant in the sum of $318,719.23

CATCHWORDS: TORT - Occupier's Liability - Workers Compensation - breach of duty by employer - no contribution

LEGISLATION CITED: Workers Compensation Act 1987 Civil Liability Act 2002

CASES CITED: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Fox v Wood (1981) 148 CLR 438

Scott Cole (Plaintiff) PARTIES: DIB Group trading as DIB Group Pty Limited trading as Hill & Co (First Defendant) Gibarco Australia Pty Ltd (Third Defendant)

FILE NUMBER(S): 1325 of 2007

COUNSEL: A J Lidden SC with E E Welsh (Plaintiff) R Cavanagh (First Defendant and Third Defendant)

SOLICITORS: Brydens Law Boyd House & Partners

JUDGMENT

Introduction

1. Scott Cole claims damages from DIB Group as a result of injuries he suffered on 30 June 2005, when he stepped on a pit cover at the Goulburn Mobil Depot, which DIB occupied. His foot slipped into the pit and he suffered a serious and complex fracture of the left ankle, as well as further complications.

2. He also sued Gilbarco Australia Pty Limited, but there was no evidence that it was liable, and there will be a verdict in its favour. Mobil Oil (Australia) Limited was also sued, but those proceedings were discontinued.

3. DIB raised as a defence the provisions of the Workers Compensation Act, s 151Z, because, at the time, Mr Cole was employed by Finemore's Transport, and DIB says the employer was in breach of its non-delegable duty to provide a safe system of work. It also raised contributory negligence.