Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd [2016] NSWSC 1893

Supreme Court New South Wales

Medium Neutral Citation: Bosevski v Avopiling Pty Ltd; The Workers Compensation Nominal Insurer v Avopiling Pty Ltd [2016] NSWSC 1893 Hearing dates: 13 – 17, 20 – 24, 27, 29 April 2015 Date of orders: 29 March 2017 Decision date: 29 March 2017 Jurisdiction: Common Law Before: Rothman J Decision: (1) Judgment for the plaintiff; (2) The plaintiff file and serve a short minute calculating damage on the basis of these reasons within 21 days hereof; (3) Liberty reserved to the parties to address the aforesaid calculation and any omission from or clarification of the heads of damage or detail necessary for said calculation by application by email to my Associate; (4) The defendant pay the plaintiff's costs of and incidental to the proceedings; (5) The parties have liberty to apply for any different or special order for costs within seven (7) days of the making and entry of the orders arising from the short minutes to which reference is made above. The Court notes: (a) The plaintiff directs the defendant to pay to Allianz Workers Compensation (NSW) Limited the sum of $661,633.39 from the sum in order 1; and (b) The defendant is to have credit for the amount paid to Allianz Workers Compensation (NSW) Limited in the sum of $661,633.39. Catchwords: NEGLIGENCE – failure to keep proper lookout – failure to take reasonable steps to prevent foreseeable injury – erection of pile driver – tensile failure of auxiliary cable under 28 tonnes of load – failure to react to perceived tension – significant injuries – pile driving company liable in negligence – employer not liable – no contributory negligence – principles for the assessment of damage and calculations determined. Legislation Cited: Civil Liability Act 2002 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 (NSW) Cases Cited: Blatch v Archer (1774) 1 Co W P 63 BlueScope Steel Ltd v Cartwright [2015] NSWCA 25 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 Shoalhaven City Council v Humphries [2013] NSWCA 390 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Waverley Council v Ferreira [2005] NSWCA 418 Category: Principal judgment Parties: 2009/337219: Riste Bosevski (Plaintiff) Avopiling Pty Ltd (Defendant/Cross-Claimant) Professional Contracting (NSW) Pty Ltd (Cross-Defendant)