Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140 Hearing dates: 10 and 11 October 2013Written submissions 22, 25, 26 October 2013 Decision date: 06 May 2014 Before: Beazley P at [1]; Macfarlan JA at [2]; Meagher JA at [3] Decision: (1) Appeal and cross-appeal allowed in part. (2) Set aside orders 1, 2, 3 and 4 made by McCallum J on 8 August 2012. (3) Judgment for the first respondent against the appellant in the amount of $1,000,000. (4) Judgment for the first respondent against the second respondent/cross-appellant in the amount of $582,600. (5) Judgment for the second respondent/cross-appellant against the appellant in the amount of $436,950. (6) Judgment for the appellant against the second respondent/cross-appellant in the amount of $145,650. (7) Judgments in orders (3), (4), (5) and (6) take effect on 8 August 2012. (8) The appellant pay 90 per cent of the first respondent's costs of the appeal. (9) The second respondent pay 90 per cent of the appellant's costs of the cross-appeal. (10) If the appellant or cross-appellant wish to apply to vary any costs orders made by the primary judge, direct that within seven days of this order they lodge written submissions in support of that application. The respondent should then lodge written submissions in response within seven days thereafter. In each case those written submissions should not exceed three pages. The Court will then determine that question on the papers. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence claims by employee of independent sub-contractor against his employer and principal sub-contractor - employee injured whilst dismantling birdcage scaffolding - scope of duty of care of principal sub-contractor where had assumed responsibility to devise and supervise safe system of work for employees of independent sub-contractor - whether evidence to support finding of breach of duty - TORTS - causation - no question of principle - TORTS - contributory negligence - whether employee's inadvertence and inattention compatible with conduct of a reasonable and prudent worker - relevance of repetitive and tedious nature of the work - DAMAGES - apportionment - no question of principle. Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(1)(f), 5B(1)(b), 5B(2)(c) Corporations Act 2001 (Cth), s 601AD Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6(4) Occupational Health and Safety Regulation 2001 (NSW), cll 210, 224, 226 Workers Compensation Act 1987 (NSW), s 151N(2) Cases Cited: Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563 Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; 155 CLR 306 Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 Smith v The Broken Hill Proprietary Co Ltd [1957] HCA 34; 97 CLR 337 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 Sungravure Pty Ltd v Meani [1964] HCA 16; 110 CLR 24 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Category: Principal judgment Parties: Waco Kwikform Ltd (Appellant/Second Cross-Respondent) Michael Perigo (First Respondent/First Cross-Respondent) Workers Compensation Nominal Insurer (Second Respondent/Cross-Appellant) Representation: Counsel: J E Maconachie QC, J C Chapman (Appellant/Second Cross-Respondent) D J Higgs SC, D-L Del Monte (First Respondenet/First Cross-Respondent) D P Kelly (Second Respondent/Cross-Appellant) Solicitors: Yeldham Price O'Brien Lusk (Appellant/ Second Cross-Respondent) Maurice Blackburn (First Respondent/First Cross-Respondent) Gillis Delaney Lawyers (Second Respondent/Cross-Appellant) File Number(s): 2012/275937 Decision under appeal Jurisdiction: 9111 Citation: Michael Perigo v Workers Compensation Nominal Insurer & Anor (No 2) [2012] NSWSC 830 Date of Decision: 2012-08-08 00:00:00 Before: McCallum J File Number(s): 2009/297523