In litigation where controversial decisions are not unusual, the NSW Court of Appeal has helped balance the ledger in its decision on negligence, the scope of the duty of care between sub-contracting parties and the liability of the employer of a working director.
The plaintiff, an employee and director of Reliance Pools, was injured whilst working on the construction of a swimming pool. The principal contractor on the building site, Uno Constructions, contracted with Reliance Pools to construct a swimming pool. Uno also contracted with AF Concrete Pumping to pump concrete up to the 7th floor of the building where the construction work was being carried out. Reliance Pools in turn engaged C&J Concrete Sprayers to spray the concrete to form the floor and walls of the pool.
When the concrete spraying was almost complete, a C&J employee asked AF Concrete Pumping to commence clearing the concrete pipes using compressed air and a sponge ball. The plaintiff tried to ask AF Concrete Pumping to secure a loose hose however unknown to the employees of Reliance Pools and C&J, AF Concrete Pumping had already commenced clearing the concrete pipes. Concrete burst out of the loose pipe into the plaintiff’s face. As a result, he suffered a traumatic brain injury, facial and head injuries.
The primary judge found AF Concrete Pumping to be negligent but Reliance Pools and C&J Concrete were not found negligent and the employer’s duty to know what was for practical purposes unknowable was not elevated to an unrealistic standard.
An appeal by AF Concrete Pumping against the court’s findings on liability was unsuccessful. The Court of Appeal upheld the findings of the judge at first instance that Reliance had not breached its duty of care.
This is not the stuff of headlines, but it is an example of commercial arrangements commonplace in small construction projects and the liability issues that typically arise when accidents happen. Here also, was an example of a case in which the decisions of the courts have been consistent, and where we would suggest the result accords with the broad legal principles applicable, with market perceptions of the role and responsibility of independent contracting parties and with common sense. That’s something that our clients might like to hear.
For more information on this update or any other insurance matter please contact Vidal Hockless or Nicky Pereira on (08) 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.