Dempsey v AM Controls Pty Ltd; AM Controls Pty Ltd v Atlas Metal Processors Pty Ltd; Atlas Metal Processors Pty Ltd v AM Controls Pty Ltd [2019] NSWSC 698

Supreme Court New South Wales

Medium Neutral Citation: Dempsey v AM Controls Pty Ltd; AM Controls Pty Ltd v Atlas Metal Processors Pty Ltd; Atlas Metal Processors Pty Ltd v AM Controls Pty Ltd [2019] NSWSC 698 Hearing dates: 7-17 August 2017 Date of orders: 12 June 2019 Decision date: 12 June 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) I enter verdict and judgment for the first defendant as against the plaintiff.

(2) I enter verdict and judgment for the plaintiff as against the second defendant for 90% of the damages agreed between them.

(3) Given the agreements reached between the parties as to damages, the parties are to within 7 days, provide short minutes of order reflecting my judgment.

(4) The parties are to agree upon a date for listing of the matter in the next 4 weeks for argument regarding costs. Catchwords: NEGLIGENCE – work injury – breach of duty of care – causation – contributory negligence – industrial accident – sheet metal cut to length machine – external contractor engaged to repair electrical component(s) of machine

NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5B –risk of harm – precautions – foreseeability – failure to establish negligence on the part of the contractor – employee plaintiff arguably assisting external contractor – extent of assistance in issue – where external contractor left a tool bag on sheet metal in machine – where employee sought to retrieve tool bag from machine after unexpected movement

NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5D – whether contractor's breach of duty was a necessary condition of the harm