Ryan & another v A F Concrete Pumping Pty Ltd & another [2013] NSWSC 113

Ryan & another v A F Concrete Pumping Pty Ltd & another [2013] NSWSC 113

AF Concrete breached its duty of care under the Civil Liability Act 2002 by failing to secure the flexible hose and ensure no persons were present during pipe cleaning, causing serious injury to the plaintiff. C & J was not in breach. Reliance Pools was not negligent. The plaintiff is entitled to statutory capped damages for economic loss and non-economic loss. Reliance Pools International’s per quod claim is made out and damages are assessed. EML is entitled to recover workers compensation payments from AF Concrete.

Parties
First Plaintiff: Jeffrey Ryan; Second Plaintiff: Reliance Pools International Pty Ltd; First Defendant: A F Concrete Pumping Pty Ltd; Second Defendant: GIO Limited Ltd; Cross Defendant: Employers Mutual NSW Ltd (EML)
Jurisdiction
Australia
Judgment Date
26 February 2013
Procedural Posture
Principal Judgment / Final Judgment After Hearing
Outcome
Judgment for first and second plaintiffs against first defendant; judgment for second defendant on plaintiff's claim; judgment for EML in cross-claim against first defendant; all other cross-claims dismissed; costs reserved.
Legal Topics
Damages, Loss of Earning Capacity, Workers Compensation, Per Quod Servitium Amisit
Torts Negligence Personal Injury Damages Loss of Earning Capacity Workers Compensation Per Quod Servitium Amisit

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Parties

Jeffrey Ryan

First Plaintiff

Reliance Pools International Pty Ltd

Second Plaintiff

A F Concrete Pumping Pty Ltd

First Defendant

GIO Limited Ltd

Second Defendant

Employers Mutual NSW Ltd (EML)

Cross Defendant

Procedural Posture

Principal Judgment / Final Judgment After Hearing

Legal Issues

  1. 1 Whether AF Concrete was negligent and liable to the plaintiff under the Civil Liability Act 2002
  2. 2 Whether C & J was negligent and liable
  3. 3 Whether plaintiff's damages should be reduced under s 151Z(2) Workers Compensation Act 1987 due to employer's negligence

Ratio Decidendi

AF Concrete breached its duty of care under the Civil Liability Act 2002 by failing to secure the flexible hose and ensure no persons were present during pipe cleaning, causing serious injury to the plaintiff. C & J was not in breach. Reliance Pools was not negligent. The plaintiff is entitled to statutory capped damages for economic loss and non-economic loss. Reliance Pools International’s per quod claim is made out and damages are assessed. EML is entitled to recover workers compensation payments from AF Concrete.

Court Disposition

Judgment for first and second plaintiffs against first defendant; judgment for second defendant on plaintiff's claim; judgment for EML in cross-claim against first defendant; all other cross-claims dismissed; costs reserved.

Orders

  • Judgment for the first and second plaintiffs against the first defendant.
  • Judgment for the second defendant on the plaintiff's claim.