Minogue v Rudd [2012] NSWSC 305

Supreme Court New South Wales

Medium Neutral Citation: Minogue v Rudd [2012] NSWSC 305 Hearing dates: 26 March 2012 - 30 March 2012 Decision date: 12 April 2012 Jurisdiction: Common Law Before: Adamson J Decision: 1. Judgment for the defendants on the plaintiff's claim. 2. Dismiss all cross-claims. 3. Order the plaintiff to pay the defendants' costs of the proceedings, including of the cross-claims. Catchwords: TORT - breach of statutory duty - whether a breach of the Occupational Health and Safety Regulation creates a private cause of action based on breach of statutory duty

TORT - negligence - relationship between occupational health and safety legislation and tort - standard of care - standard of care owed by an employer to an employee

TORT - negligence - duty of care - employer-employee relationship - non-delegable duty of care - whether, in the circumstances, the plaintiff was an employee of the third defendant

PRACTICE AND PROCEDURE - pleadings - amendment - where applications to amend pleadings made at various stages in the trial - where amendment raises real issues in the proceedings Legislation Cited: - Civil Liability Act 2002 - Civil Procedure Act 2005 - Occupational Health and Safety Act 2000 - Statute Law (Miscellaneous Provisions) Act 2005 - Workers Compensation Legislation Amendment Act 2003 - Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: - Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 - Alexander v Cambridge Credit Corporation Limited (1987) 9 NSWLR 310 - Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; 160 CLR 301 - Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 - Browne v Dunn (1893) 6 R (HL) 67 - Condos v Clycut Pty Limited [2009] NSWCA 200 - Hollis v Vabu Pty Limited [2001] HCA 44; 207 CLR 21 - Jones v Dunkel [1959] HCA 8; 101 CLR 298 - Leighton Contractors Pty Limited v Fox [2009] HCA 35; 240 CLR 1 - Lithgow City Council v Jackson [2011] HCA 36; 85 ALJR 1130 - March v Stramare (1991) [1991] HCA 12; 171 CLR 506 - Minogue v Rudd [2011] NSWSC 966 - Rockdale Beef Pty Limited v Carey [2003] NSWCA 132 - Shellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121 - Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1; 160 CLR 16 - Thompson v Woolworth's (Queensland) Pty Limited [2005] HCA 19; 221 CLR 234 - Wynn Tresidder Management Pty Limited v Barkho [2009] NSWCA 149 Category: Principal judgment Parties: Paul Timothy Minogue (Plaintiff) David Jonathan Rudd t/as Rudd & Co Constructions (First Defendant) John Tilden (Second Defendant) DMW Carpentry Services Pty Ltd (Third Defendant) Representation: Counsel: B Gross QC/ R Harrington (Plaintiff) RA Cavanagh SC/ D Lloyd (First Defendant) John Tilden (Second Defendant in Person) D Hooke SC/ S Maybury (3rd Defendant) Solicitors: Carrol O'Dea (Plaintiff) Wotton Kearney (First Defendant) Edwards Michael Lawyers (Third Defendant) File Number(s): 2008/00289464