Milios v Austress Freyssinet Pty Ltd [2016] NSWDC 348

District Court New South Wales

Medium Neutral Citation: Milios v Austress Freyssinet Pty Ltd [2016] NSWDC 348 Hearing dates: 23 and 25 November 2016 Date of orders: 02 December 2016 Decision date: 02 December 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the Defendant. (2) Plaintiff pay Defendant's costs. (3) Liberty to restore in relation to costs. (4) Exhibits retained for 28 days. Catchwords: TORT – negligence – personal injury – workplace accident – plaintiff injured back while stirring a mix of sand and cement without assistance – whether absence of assistance amounted to an unsafe system of work – causation – whether plaintiff's ongoing disabilities resulted from the work injury or subsequent employment accident – credit issues in relation to damages – application on first day of hearing for order pursuant to s 318(1)(c) Workplace Injury Management and Workers Compensation Act 1998 (NSW) in relation to plaintiff's expert report – application to exclude the plaintiff's report not brought during the hearing – application by defendant to reopen case to bring application to exclude report after judgment reserved – both experts made the same factual errors and their findings were accordingly of no weight – judgment for the defendant Legislation Cited: Civil Liability Act 2002 (NSW) Occupational Health and Safety Act 2000 (NSW) Occupational Health and Safety Regulations 2001 (NSW), cl 9, 10, 11, 13, 14 and 16 Workers Compensation Act 1987 (NSW), ss 151D and 151L Cases Cited: Cicino v F & C Tassone & Sons Pty Ltd [2016] NSWDC 191 Czatyrko v Edith Cowan University (2009) 214 ALR 349 EB v CT (No 2) [2008] QSC 306 Liftronic Pty ltd v Unver (2001) 75 ALJR 867 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Nominal Defendant v Kostic [2007] NSWCA 14 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 Van der Sluice v Display Craft Pty ltd [2002] NSWCA 204 White v Logen Pty Ltd As Trustee for the Byrn Family Trust [2014] NSWCA 159 Wyong Shire Council v Shirt (1980) 146 CLR 40 Category: Principal judgment Parties: Plaintiff: Andrew Milios Defendant: Austress Freyssinet Pty Ltd Representation: Counsel: Plaintiff: Mr T Meakes Defendant: Mr H Halligan