Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor; Brimac Pty Ltd v Johnston & Anor [2005] NSWCA 423

Reported Decision : (2005) Aust Torts Reports 81-814

New South Wales Court of Appeal

CITATION: Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor; Brimac Pty Ltd v Johnston & Anor [2005] NSWCA 423

HEARING DATE(S): 14 November 2005

JUDGMENT DATE: 5 December 2005

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 6; McColl JA at 7

DECISION: The liability appeal and the cross appeal :; (1) Appeal and cross-appeal allowed (2) Notice of cross-appeal to be filed within 7 days (3) Set aside the verdict and judgment entered by Delaney DCJ on 4 March 2005 against the appellant in favour of the respondent (4 )Verdict and judgment for the respondent in the sum of $191,471.54 (5) Respondent to pay 20% of Brimac's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.; The contribution appeal:; (6) Grant leave to appeal (7 )Notice of Appeal to be filed within 7 days (8) Appeal allowed (9) Verdict and judgment on the cross-claim set aside and in lieu thereof verdict and judgment for the appellant on the cross-claim ; (10) Respondent to pay the appellant's costs of the contribution appeal and the appellant's costs of the cross-claim in the District Court.

CATCHWORDS: TORT - negligence - duty of care – experienced worker contracted to third party by labour hire firm – whether breach of duty – Contributory negligence – whether worker's conduct amounted to a departure from the standard of care of a reasonable man. - CONTRIBUTION - joint or several tortfeasors - third party and employer of injured worker - amendments to Workers Compensation Act 1987 limiting damages recoverable from employer - injury before amendments – worker's proceedings brought against third party after amendments – third party cross-claims against employer of injured worker seeking to recover contribution – injured worker unable to recover damages against employer - whether contribution pursuant to s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 available - whether s 151Z(2) of Workers Compensation Act precludes contribution (D)