M A Partitioning & Ceilings Pty Ltd v Kezic [2005] NSWCA 414

New South Wales Court of Appeal

M A Partitioning & Ceilings Pty Ltd v Kezic [2005] NSWCA 414 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 November 2005

JUDGMENT DATE: 25 November 2005

JUDGMENT OF: Santow JA at 1; Bryson JA at 75; Hoeben J at 78

DECISION: (1) Verdict be entered in favour of the appellant. ; (2) The respondent to pay the appellant's costs at trial and on appeal.

CATCHWORDS: LIABILITY - Employee of sub-contractor, a gyprock fixer, injured his back on building worksite where both contractor and sub-contractor were engaged in constructing gyprock partitions and ceilings – whether contractor so involved in injured respondent employee's work, either directly or through his actual employer's supervisor, as to be subject to a non-delegable duty of care to that employee - and whether that duty breached in the circumstances – whether TNT Australia Pty Limited v Christie & Ors [2003] NSWCA 47 distinguishable. - BREACH – challenge to factual findings upon which liability based – whether employee supplied with suitable equipment – whether causation made out. - DAMAGES – whether s151Z(2) Workers Compensation Act 1987 applied to reduce damages – whether, according to statutory formula, damages should be reduced by contribution contractor entitled to obtain from sub-contractor, if both found liable.

LEGISLATION CITED: Workers Compensation Act 1987 s151Z(2)

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Bennett v Minister of Community Welfare [1992] 176 CLR 408 Chappel v Hart (1998) 195 CLR 232 Purkess v Crittenden (1965) 114 CLR 164 CASES CITED: Samsung Electronics Australia Pty Ltd v Macura [2005] NSWCA 386 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 TNT Australia Pty Limited v Christie & Ors [2003] NSWCA 47 Watts v Rake (1960) 108 CLR 158