Macey v Macquarie Generation & HIS Engineering Pty Ltd [2007] NSWDC 242

Reported Decision : 6 DCLR (NSW) 45

New South Wales District Court

CITATION: Macey v Macquarie Generation & HIS Engineering Pty Ltd [2007] NSWDC 242

HEARING DATE(S): 8-12 , 15-16.10.07

JUDGMENT DATE: 22 November 2007

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Verdict for the Macquarie Generation on Mr Macey's claim; 2. Verdict for HIS Engineering Pty Ltd on Macquarie Generation's cross claim; 3. Proceedings adjourned to a date to be fixed to hear argument concerning the costs of the proceedings.

CATCHWORDS: Workplace injury - S151Z - Proof of employment & payment of compensation - Breach of statutory duty: whether to be determined under Civil Liability Act - Standard of care to be applied

Civil Liability Act 2002 LEGISLATION CITED: Occupational Health & Safety Act 2000 Workers Compensation Act 1987

CASES CITED: Fox v Wood (1981) 148 CLR 438

Jason MACEY PARTIES: MACQUARIE GENERATION HIS ENGINEERING PTY LTD

FILE NUMBER(S): Newcastle 56 of 2006

Plaintiff - C A W Hart COUNSEL: Defendant/cross claimant - P J Menary Cross defendant - D Shoebridge

Plaintiff - Bale Boshev Lawyers SOLICITORS: Defendant - Sparke Helmore Cross defendant - Fisher Cartwright Berriman

JUDGMENT

1 Jason Andrew Macey claims that he suffered an injury to his right shoulder in the course of his employment as a boilermaker at Bayswater Power Station. 2 He holds Macquarie Generation, the owner and occupier of the power station, responsible for his injury, claiming breach of statutory duty and negligence. 3 Macquarie Generation cross claims against HIS Engineering Services Pty Limited that it employed Mr Macey at the time of his injury, that it owed him a non delegable duty of care as well as obligations under the Occupational Health and Safety Act 2000, and that it was in breach of its contractual obligations to Macquarie Generation. 4 The issues were: (a) precisely how Mr Macey's injury occurred; (b) whether the means of access provided to the area of the Power Station in which Mr Macey was working were such that they breached the requirements of the Occupational Health and Safety Act 2000; (c) whether Mr Macey's injury was the result of negligence on the part of Macquarie Generation; (d) the extent of any liability of HIS for the injury suffered by Mr Macey; (e) whether there was contributory negligence on the part of Mr Macey; (f) the extent to which Mr Macey's shoulder was injured in the course of any workplace accident; (g) the compensation to be awarded to Mr Macey; (h) the application of s 151Z of the Workers Compensation Act 1987 to any damages recovered by Mr Macey; (i) it being admitted that HIS breached its contractual obligations to Macquarie Generation, the damages arising from the breach.