Taboas v Abigroup Contractors Pty Ltd [2014] NSWSC 13

Supreme Court New South Wales

Medium Neutral Citation: Taboas v Abigroup Contractors Pty Ltd [2014] NSWSC 13 Hearing dates: 28, 29, 30, 31 October, 1 November 2013 Decision date: 31 January 2014 Before: Harrison J Decision: 1. Verdict for the plaintiff against the first defendant and the second defendant in amounts to be calculated in accordance with these reasons. 2. Declare that the amount of the respective contributions recoverable as between the defendants on the cross-claims joined between them as just and equitable having regard to the extent of their responsibility for the plaintiff's damage is 50 percent each. 3. Direct the parties to bring in short minutes of order giving effect to these reasons. 4. Grant liberty to apply. Catchwords: INDUSTRIAL ACCIDENT - negligence - personal injuries - where system of work required plaintiff to manoeuvre heavy jacks in confined spaces - repetitive heavy lifting - back injury - pre-existing degenerative spinal condition - whether breach of duty - CROSS-CLAIMS - concurrent wrongdoers - contribution between employer and co-contractor - CONTRIBUTORY NEGLIGENCE - whether plaintiff guilty of contributory negligence - LIMITATION OF ACTIONS - whether amended statement of claim filed in excess of three years of the date upon which plaintiff's cause of action against co-contractor discoverable Legislation Cited: Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Limitation Act 1969 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Workers Compensation Act 1987 Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111 Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454 Benic v State of New South Wales [2010] NSWSC 1039 Clout Industrial Pty Limited (In Liquidation) v Baiada Poultry Pty Limited [2004] NSWCA 89; (2004) 61 NSWLR 111 Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126 State of New South Wales v Gillett [2012] NSWCA 83 Strasburger Enterprises Pty Limited t/as Quix Food Stores v Serna [2008] NSWCA 354 Wilson v Nilepac Pty Ltd [2011] NSWCA 63 Zanner v Zanner [2010] NSWCA 343 Category: Principal judgment Parties: Robert Taboas (Plaintiff) Abigroup Contractors Pty Ltd (First Defendant) VSL Australia Pty Ltd (Second Defendant) Representation: Counsel: K C Fleming QC with P R Stockley (Plaintiff) D R Benson (First Defendant) R Gambi (Second Defendant) Solicitors: CMC Lawyers (Plaintiff) Bartier Perry (First Defendant) Wotton + Kearney (Second Defendant) File Number(s): 2011/171589 Publication restriction: Nil