HERNANDEZ v NEFIKO MARBLE CONTRACTORS PTY LTD [2006] NSWCA 90

New South Wales Court of Appeal

CITATION: HERNANDEZ v NEFIKO MARBLE CONTRACTORS PTY LTD [2006] NSWCA 90

HEARING DATE(S): 23 March 2006

JUDGMENT DATE: 21 April 2006

JUDGMENT OF: Mason P at 1; Beazley JA at 43; Tobias JA at 44

DECISION: Appeal dismissed with costs

CATCHWORDS: NEGLIGENCE – Principal's duty of care to independent contractor – Corporate Principal – Principal liable through its servants and agents – Where servant not in the employ of principal at time of negligent act – No liability in principal. (ND)

Boylan Nominees Ltd v Sweeney [2005] NSWCA 8, (2005) ATR 81-780 CASES CITED: CSR Ltd v Maddalena [2006] HCA 1 Fox v Percy (2003) 214 CLR 118 Suuval v Cessnock City Council [2003] HCA 41, 77 ALJR 1449

PARTIES: Rafael HERNANDEZ NEFIKO MARBLE CONTRACTORS PTY LTD

FILE NUMBER(S): CA 40216/2005

COUNSEL: Appellant: S Norton SC/ M Fraser Respondent: L King SC/ S Kettle

SOLICITORS: Appellant: Brydens Respondent: Thompson Cooper Lawyers Pty Ltd

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 8711/2002

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40216/05 DC 8711/2002

MASON P BEAZLEY JA TOBIAS JA

Friday 21 April 2006

Rafael HERNANDEZ v NEFIKO MARBLE CONTRACTORS PTY LTD JUDGMENT

1 MASON P: The appellant was a subcontractor stonemason working for the respondent, itself a subcontractor at a building site called Wynyard Green in York Street, Sydney. Damages were claimed for a back injury allegedly suffered in an accident on 12 September 2001. The appellant's case was that he was lifting a 110kg piece of granite assisted by of a labourer named Steve Watson. Watson let go and the appellant injured his lower back when he took the whole load. 2 The trial presented an unusually difficult set of factual issues to be resolved. It was established to the satisfaction of the trial judge that the plaintiff had a substantial disability as a result of his back pathology. But there was a live dispute as to whether this was caused or exacerbated by the disputed accident on 12 September 2001. The two cases were diametrically opposed in key elements. The very accident was disputed and the allegedly negligent actor was said to have had nothing to do with the respondent at the relevant time. 3 The respondent was sued on the basis that Watson was a servant or agent it had made available to the appellant. It was common ground that Watson occupied this role between March and June 2001 when he was the respondent's employee. But, as the case was conducted, the pleaded date of the accident was critical because it was on 12 September 2001 that the appellant visited his GP, Dr Lau, with a complaint about a bad back; the appellant pointed to a phone record that day to corroborate his disputed account of having reported the incident to the principal of the respondent, Ms Cheong; and three of the appellant's fellow workers (Messrs Musgrave, Locarotolo and Bodrilla) placed Watson then at the site because (although none saw the accident) each man swore that Watson was the appellant's offsider at and after the time of the "September 11" catastrophe in New York City. The appellant said that Watson was his assistant until November or December 2001. 4 The respondent's case, in brief, was that no accident occurred and that Watson severed all ties with it and the Wynyard Green building site in June 2001, almost 3 months before the alleged event. Two principals of the respondent, Ms Cheong (Black 156, 157) and Ms Wong (205-8, 218, 219, 230, 233), each swore that Watson ceased any involvement in June. A letter of termination was produced by Watson (Blue 101). Watson's new employer denied any "lending" arrangement with the respondent. According to Ms Cheong, no lifting accident was reported to her on the day in question or at all. Nothing was recorded in the head builder's accident register although the appellant had previously reported injuries there (48). There were also significant inconsistencies in medical histories provided by the appellant. 5 Watson himself gave evidence that he knew of no accident and stating that he had had no contact with the appellant or the respondent after June 2001 apart from some correspondence with Ms Cheong about unpaid wages. However, he was found to be an unsatisfactory witness, unworthy of acceptance without corroboration (J51, 60). The trial judge was particularly unimpressed by the fact that Watson had told Musgrave and Locarotolo outside the Court that if the plaintiff had paid him money he would have helped him out. The plaintiff did not suggest that there had been any conversation with him on that topic but there was an unresolved question whether Watson was being flippant or worse in this remark to his fellow witnesses.