Christopher Howarth v Spotless Group Limited and Ors [2012] NSWDC 25

District Court New South Wales

Medium Neutral Citation: Christopher Howarth v Spotless Group Limited and Ors [2012] NSWDC 25 Hearing dates: 6 February 2012 Decision date: 23 March 2012 Before: Judge M Sidis Decision: 1.The plaintiff's loss and damage is assessed in the sum of $1,065,875.32. 2.The proceedings are adjourned to a date to be fixed to deal with issues arising out of s 151Z of the Workers Compensation Act 1987, costs and any claims for interest. Catchwords: INDUSTRIAL ACCIDENT: Manifestly unsafe system of work - absence of instruction and supervision - circumstances of the accident - credit - inconsistencies - contributory negligence - liability of a labour hire company - causation - assessment of damages Legislation Cited: Limitation Act 1969Workers Compensation Act 1987 Category: Principal judgment Parties: Christopher Howarth (Plaintiff) Spotless Group Limited (Defendant) Representation: Mr P Doherty SC (For the Plaintiff) Ms J C Chapman (For the Defendant) RJ O'Halloran & Co (For the Plaintiff) Yeldham Price O'Brien Lusk (For the Defendant) File Number(s): 2010/336491

Judgment 1Mr Christopher Howarth claimed that he injured his left shoulder and elbow on 23 October 2006 when he fell in the course of his employment as a cleaner at the abattoir operated by Peel Valley Exporters Pty Limited, the second defendant. 2At the time of his injury the plaintiff was employed by a labour hire company, Fast Track Pty Limited. This company was not a party to the proceedings. Fast Track hired the plaintiff's services to Berkeley Challenge Pty Limited, the first defendant, trading at Spotless at the second defendant's abattoir. Spotless held the contract to clean the second defendant's abattoir. 3The plaintiff was employed as a full time casual cleaner. He claimed that his injury occurred when he slipped on the floor of the boning room of the abattoir as he was walking backwards into the room pulling a heavy hot water hose. 4He claimed against the defendants on a joint and several basis, alleging that both the system of work and the facilities made available were unsafe for the task that he was required to perform. 5The defendants denied liability and claimed that there was contributory negligence on the part of the plaintiff. 6Each defendant cross claimed against the other. I was informed at the commencement of the hearing that the defendants had resolved their differences and they requested that I order that the cross claims be dismissed with each party paying its own costs. Taking account of the resolution of these actions and of the fact that the defendants were represented at the hearing by one counsel, I considered it unnecessary to apportion liability between them. 7Since they were not argued, I disregarded those parts of the defences that claimed that the second defendant owed no duty of care to the plaintiff and relied on s 50C of the Limitation Act 1969. I proceeded on the basis that the first defendant owed the plaintiff a duty of care as host employer and that the second defendant owed him a duty of care as occupier of the premises in which he worked at the time of his injury. 8Each defendant relied on s 151Z of the Workers Compensation Act 1987 in relation to the conduct of Fast Track. 9A memorandum of consent to the exercise of extended jurisdiction was filed at the commencement of the proceedings. 10The issues for determination were: 1The circumstances in which the plaintiff was injured; 2Whether those circumstances established a breach of duty by the defendants; 3The extent, if any, of the plaintiff's contributory negligence; 4Whether those circumstances established a breach of duty by Fast Track; 5The extent to which any breach of duty was causative of the plaintiff's injury; 6The compensation, if any, to be awarded to the plaintiff for non-economic loss, loss of income earning capacity, medical expenses and domestic care services.