Zaya v Manidis Roberts Pty Ltd v UGL Infrastructure Pty Ltd and Anor (No 2) [2019] NSWSC 515

Supreme Court New South Wales

Medium Neutral Citation: Zaya v Manidis Roberts Pty Ltd v UGL Infrastructure Pty Ltd and Anor (No 2) [2019] NSWSC 515 Hearing dates: 19, 20, 21, 22, 23 March 2018; 30 April; 2 May 2018 Date of orders: 08 May 2019 Decision date: 08 May 2019 Jurisdiction: Common Law Before: Campbell J Decision: See para [199] Catchwords: NEGLIGENCE – Employers liability – content of duty of care – no issue of principle

NEGLIGENCE – Duty of care – non-delegable duty – whether principal has duty to independent contractor – whether common law imposes duty of care on principals for benefit of independent contractors – accepted if plaintiff's case made out it would have been caught by the entrepreneur's duty arising from the creation of risk – plaintiff's case not made out.

CIVIL LIABILITY – Risk – materialisation of inherent risk – whether risk of injury to plaintiff was an inherent risk as defined in the Act – found that risk of person falling from staircase cannot be avoided by the exercise of reasonable care and skill on the part of person responsible for its construction.

EVIDENCE – Admissions – hearsay evidence - lack of contemporaneous records in support of plaintiff's case – evidence of confrontation inconsistent with established facts – plaintiff's account on factual issues generally unreliable. Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5R, 5S Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Law Reform (Miscellaneous Provisions) Act 1965, s 9 Workers Compensation Act 1987 (NSW), s 151 Work Health and Safety Act 2011 (NSW), s 267 Workplace Injury Management and Workers Compensation Act (NSW) 1998, s 321 Cases Cited: CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 466; [2013] NSWCA 49 Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177; [1961] HCA 3 Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 Fox v Percy (2003) 2014 CLR 118; [2003] HCA 22 I&J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 Morawski v State Rail Authority (1988) 14 NSWLR 374 Murray-Moore (New South Wales) Pty Ltd (1975) 132 CLR 336 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225; [1954] HCA 11 Public Transport Commission of New South Wales v J RTA v Dederer (2007) 234 CLR 330 Seage v State of New South Wales [2008] NSWCA 328 Southwest Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 327 FLR 110 Stannus v Graham (1994) Aust. Torts Reports 81 Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Wyong Shire Council v Shirt (1980) 146 CLR 40 Category: Principal judgment Parties: Andrawos Zaya (Plaintiff) Manidis Roberts Pty Ltd and UGL Infrastructure Pty Ltd t/as Energised Alliance (First Defendant) Silver Raven Pty Ltd (Second Defendant) Representation: Counsel: BJ Gross QC with V Jurisich (Plaintiff) D Talintyre (First Defendant) M Best (Second Defendant)