ZAHNER v ANDREAS PTY LIMITED & BORAL BUILDING SERVICES PTY LTD [2001] NSWCA 352

New South Wales Court of Appeal

CITATION : ZAHNER v ANDREAS PTY LIMITED & BORAL BUILDING SERVICES PTY LTD [2001] NSWCA 352 FILE NUMBER(S) : CA 40095/00 HEARING DATE(S) : 26 June 2001 JUDGMENT DATE : 4 October 2001

PARTIES : Terrence Alan ZAHNER v W ANDREAS PTY LIMITED & BORAL BUILDING SERVICES PTY LIMITED JUDGMENT OF : Mason P at 1; Fitzgerald AJA at 2; Grove J at 44

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9224/97 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER :

Appellant: A Morrison SC/J Carr COUNSEL : 1st Respondent: Not represented 2nd Respondent: J Maconachie QC/R Page Appellant: Mulally Mylott SOLICITORS : 1st Respondent: Not represented 2nd Respondent: Phillips Fox CATCHWORDS : PERSONAL INJURY - workplace injury - scaffolding collapsed - STATUTORY DUTY - breach - Whether regulation applies to a head contractor - where head contractor has an obligation to maintain scaffolding, head contractor liable - scaffolding unsuitable and unsafe - whether a person is bound by the regulations will depend on whether a person is actually carrying out the building work - Construction Safety Act 1912 - Construction Safety Regulations 1950 cll 6, 73 - NEGLIGENCE - breach of duty of care - whether contractor had a duty to ensure scaffolding was safe where subcontractor skilled and experienced - DAMAGES - quantum for - where injury causes depressive reaction - award inadequate to reflect the appellants losses Construction Safety Act 1912 LEGISLATION CITED : Construction Safety Regulations 1950 Law Reform (Miscellaneous Provisions) Act 1965 CASES CITED: Doval v Anka Builders Pty Limited (1992) 28 NSWLR 1; H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422; Haines v Bendall (1991) 172 CLR 60; Maggiotto Building Concepts Pty Ltd v Gordon [2000] NSWCA 2001; Malec v J.C. Hutton Pty Ltd (1969) 169 CLR 638 DECISION : See pars 42 and 55.