Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65

New South Wales Court of Appeal

CITATION : Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65 FILE NUMBER(S) : CA 40922/99 HEARING DATE(S) : 22/03/01 JUDGMENT DATE : 30 March 2001

PARTIES : Maggiotto Building Concepts Pty Limited v Desmond Gordon JUDGMENT OF : Meagher JA at 1; Stein JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 6569/97 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

COUNSEL : (Appellant): J S Drummond (Respondent): S L Walmsley SC/R Taylor SOLICITORS : (Appellant): Michell Sillar (Respondent): Stoikovich & Banfield CATCHWORDS : PERSONAL INJURY - workplace injury - double storey unit, no staircase, scaffolding or other means of access - STATUTORY DUTY - breach - Construction Safety Act 1912 - Construction Safety Regulations 1950 reg 73 - whether regulation applies to a head contractor - where preliminary work to be carried out by head contractor, head contractor liable - where a head contractor participates in faulty construction work it will be liable to independent contractors - whether a person is bound by the regulations will depend on whether a person is actually carrying out building work - breach of regulations found - voluntary assumption of risk and contributory negligence no answer to breach of statutory duty - CONTRACT - breach of implied duty - term implied by operation of law for employer to take reasonable care for employees safety - no facts to support express agreement overriding implied term - breach of implied term found - voluntary assumption of risk and contributory negligence do not apply to breach of contract - DAMAGES - quantum - whether psychiatric injury caused by accident - findings of trial judge on quantum upheld. D LEGISLATION CITED : Construction Safety Regulations 1950 Construction Safety Act 1912 (NSW) H C Buckman and Son Pty Limited v Flannagan (1974) 133 CLR 422 Davey v Skinner [1961] SR (NSW) 648 Hetherington v Mirvac Pty Limited [1999] NSWSC 443 Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264 Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57 CASES CITED: Johnstone v Bloomsbury Health Authority [1992] 1 QB 333 Stevens v Brodribb Sawmilling Company Limited (1985) 160 CLR 16 Bowater v Rowley Regis Corporation [1944] KB 476 Tingle v J B Hinz and Sons [1970] Qd R 108 King v Commissioner for Railways [1971] Qd R 266 Astley v Austrust Limited (1999) 197 CLR 1 DECISION : Appeal dismissed. Cross appeal upheld. Verdict for $230,396 set aside and judgment for respondent and a verdict in the sum of $460,792. Appellant to pay the respondent's costs of the trial, appeal and cross appeal, and in regard to the cross appeal the appellant to have a certificate under the Suitors Fund Act 1951.