Cobcroft v Aggcon Pty Ltd & Anor [2011] NSWSC 1287

Supreme Court New South Wales

Medium Neutral Citation: Cobcroft v Aggcon Pty Ltd & Anor [2011] NSWSC 1287 Hearing dates: 6-9/06/2011 Decision date: 03 November 2011 Jurisdiction: Common Law Before: Fullerton J Decision: 1. Verdict for the plaintiff in the sum of $1,356,453 for which Curtis Barrier is liable for 75 per cent. 2. Judgment for the plaintiff against Curtis Barrier in the sum of $1,017,339. 3. Judgment for the plaintiff against Aggcon in the sum of $706,667. 4. Curtis Barrier's cross claim is dismissed. 5. Judgment for Aggcon in its cross claim against Curtis Barrier in the sum of $136,055. 6. Curtis Barrier is to pay the plaintiff's costs assessed on the ordinary basis. 7. Curtis Barrier is to pay Aggcon's costs of the cross claim. Catchwords: NEGLIGENCE - claim for work injury damages under Workers Compensation Act - whether claim for damages is assessable under Motor Accidents Compensation Act - claim for damages in negligence under the Civil Liability Act - employer's non-delegable duty of care to provide safe system of work - defendants' liability as joint and several tortfeasors - contributory negligence - contribution and/or indemnity between joint and several tortfeasors - breach of contract - foreseeable risk of injury Legislation Cited: Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Fox v Wood [1981] HCA 41; 148 CLR 438 Havas v Standard Knitting Mills Pty Ltd [2001] NSWCA 295; 52 NSWLR 293 I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486 JA and BM Bowden Pty Ltd v Doughty [2009] NSWCA 82 Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270 Lepore v State of New South Wales [2001] NSWCA 112; 52 NSWLR 420 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1 Williams v Twynam Agricultural Group Pty Ltd [2011] NSWSC 1098 Category: Principal judgment Parties: Peter Cobcroft (Plaintiff) Aggcon Pty Ltd (1st Defendant) Curtis Barrier Pty Ltd (2nd Defendant) Representation: MJ Cranitch SC/AD Campbell (Plaintiff) GJ Parker (1st Defendant) AB Parker (2nd Defendant) Gerard Malouf & Partners (Plaintiff) Moray & Agnew (1st Defendant) Walker Hedges & Co (2nd Defendant) File Number(s): 2009/338564