Ian Sutton v Erect Safe Scaffolding (Australia ) Pty Limited and Anor [2006] NSWDC 118

New South Wales District Court

CITATION: Ian Sutton v Erect Safe Scaffolding (Australia ) Pty Limited and Anor [2006] NSWDC 118

HEARING DATE(S): 2-5 December 2006

JUDGMENT DATE: 14 December 2006

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: Verdict for the plaintiff in the sum of $663 369.97.; Verdict for Cross-claimant on Cross-claim.

CATCHWORDS: Negligence - Contributory Negligence - Indemnity

LEGISLATION CITED: Workers Compensation Act 1987

Ian Sutton (Plaintiff) PARTIES: Erect Safe Scaffolding (Australia ) Pty Limited (First Defendant/Cross-Defendant) Australand (Regency) Pty Limited (Second Defendant/Cross-Claimant)

FILE NUMBER(S): 4948 of 2004

P. Hennessy SC and M. Perry (Plaintiff) COUNSEL: D. Cutler (First Defendant) J. Stewart (Second Defendant)

Taylor & Scott (Plaintiff) SOLICITORS: McCulloch & Buggy (First Defendant) Ebsworth & Ebsworth (Second Defendant)

JUDGMENT

1 On 21 October 2002, the plaintiff, Ian Sutton, was working as a sub-foreman and leading hand for his employer, Dalma Formwork Services Pty Limited (henceforth "Dalma"), on the Nexus apartment building project site at St Leonards. The head contractor for the job was Australand (Regency) Pty Limited (henceforth "Australand"), the second defendant. The actual work on the site was done by a number of subcontractors, including Dalma and Erect Safe Scaffolding (Australia) Pty Limited (henceforth "Erect"), the first defendant.

2 Mr Sutton claims to have suffered injury to his neck in an accident on the site, as a result of which he has been permanently incapacitated for work. His claim is against Erect and Australand. Australand has cross-claimed against Erect for contribution, in respect of tortious liability, and for indemnity and breach of contract. Both defendants allege that the plaintiff was guilty of contributory negligence, and that under the Workers Compensation Act, s 151Z, damages should be apportioned, taking into account an alleged breach of duty by Dalma.