Drazina v De Martin & Gasparini Pty Ltd [2010] NSWDC 26

New South Wales District Court

CITATION: Drazina v De Martin & Gasparini Pty Ltd [2010] NSWDC 26

HEARING DATE(S): 1/12/09 - 1/2/09

JUDGMENT DATE: 4 March 2010

JURISDICTION: Civil

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: Workplace injury - Labour hire to non-employer - Injury on premises of non-employer - Duty of care of employer and non-employer - Contributory negligence - Damages

LEGISLATION CITED: Workers Compensation Act 1987 s 151Z Civil Liability Act 2002 S 5R

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338 Estate of the Late MP Mutton by its Executors & RW Mutton trading as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340 CASES CITED: Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor [2005] NSWCA 423 Grljak v Trivan Pty Ltd (In Liq) (1994) 35 NSWLR 82 Maricic v Dalma Formwork Australia Pty Limited & Anor [2006] NSWCA 174 McLean v Tedman [1984] HCA 60 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99

PARTIES: Branko Drazina De Martin & Gasparini Pty Ltd

FILE NUMBER(S): 4002/08

COUNSEL: H N Kelly SC & T McKenzie for the Plaintiff R Gambi for the Defendant

SOLICITORS: Taylor and Scott Lawyers for the Plaintiff Davidson Gerathy Lawyers for the Defendant

1 The plaintiff was a concretor. On 15 December 2005, his employer, Vamugo Concreting Proprietary Limited (Vamugo) told him to attend a construction site at Rhodes, report to De Martin and Gasparini Proprietary Limited (DMG) concretors, and follow their directions. In the course of the day, DMG asked the plaintiff to hold a hose during a "blowout", a procedure designed to clean out a concreting hose by forcing the concrete out using an air compressor. Such a task is not part of the normal work of a concretor. A blast of air jolted the hose, which flicked up and struck the plaintiff on the right temple.