MARICIC v DALMA FORMWORK (AUSTRALIA) PTY LTD & ANOR [2006] NSWCA 174

New South Wales Court of Appeal

CITATION: MARICIC v DALMA FORMWORK (AUSTRALIA) PTY LTD & ANOR [2006] NSWCA 174

HEARING DATE(S): 16 June 2006

JUDGMENT DATE: 30 June 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Basten JA at 3

DECISION: (1) Appeal allowed and orders made in the District Court in matter 13478 of 2001, on 8 March 2005, that there be a verdict for the second and third defendants against the plaintiff and that the plaintiff pay their costs, be set aside; (2) In lieu thereof, on the question of liability, there be a finding for the plaintiff as against the second and third defendants; (3) Order that the First and Second Respondents pay the Appellant's costs of the appeal, including the application for leave to appeal; (4) Dismiss the cross-appeal brought by the Respondents against the Cross-Defendant; (5) Order the Respondents to pay the costs of the Cross-Defendant of the Cross-Appeal, including its costs of the application for leave to appeal; (6) Remit the matter to the District Court for assessment of damages subject to a direction that the damages payable by the Respondents to the Appellant shall be reduced pursuant to s 151Z(2)(c) on the basis that the employer, but for Part 5 of the Workers Compensation Act, would have been held 20% liable for the injury suffered by the Appellant; (7) Grant each of the Respondents a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified, in relation to the costs of the appeal

CATCHWORDS: NEGLIGENCE – duty of care owed by head contractor to subcontractor – employee of subcontractor injured by falling in a penetration in concrete floor – whether the contractor owed a duty to the subcontractor to ensure that its employee was not exposed to unreasonable risk – duty owed by labour hire firm to employee - EVIDENCE – onus of proof – which party had the onus of proving liability of employer for purpose of s151Z(2) of the Workers Compensation Act 1987 (NSW)