Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140

Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140

Following the 5 May 2006 incident, Waco assumed substantial responsibility for the system of work and supervision for the dismantling of the scaffold. Consequently, its duty of care extended to ensuring that the system of work was safe for the subcontractor's employees. Failure to adequately identify and communicate bays requiring the use of wooden planks was a breach, leading to foreseeable injury. However, the injured worker’s failure to check the components of the bay before proceeding constituted contributory negligence, assessed at 20%.

Parties
Appellant/second Cross Respondent: Waco Kwikform Ltd; First Respondent/first Cross Respondent: Michael Perigo; Second Respondent/cross Appellant: Workers Compensation Nominal Insurer
Jurisdiction
Australia
Judgment Date
06 May 2014
Procedural Posture
Tort/negligence—workplace Injury / Appeal and Cross Appeal From Supreme Court, After Trial Judgment
Outcome
Appeal and cross-appeal allowed in part; judgment adjusted for contributory negligence; costs orders varied accordingly.
Legal Topics
Scope of Principal Contractor's Duty of Care, Breach of Duty—safe System of Work, Causation, Contributory Negligence, Damages Apportionment, Obligations of Employer and Principal Contractor
Torts Negligence Workplace Safety Personal Injury Damages Scope of Principal Contractor's Duty of Care Breach of Duty—safe System of Work Causation +3 more

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Parties

Waco Kwikform Ltd

Appellant/second Cross Respondent

Michael Perigo

First Respondent/first Cross Respondent

Workers Compensation Nominal Insurer

Second Respondent/cross Appellant

Procedural Posture

Tort/negligence—workplace Injury / Appeal and Cross Appeal From Supreme Court, After Trial Judgment

Legal Issues

  1. 1 Did the principal subcontractor (Waco) owe a duty of care to an employee of an independent contractor, and if so, what was its scope after assumption of responsibility post-5 May 2006?
  2. 2 Was there a breach of duty in failing to identify and highlight scaffold bays where additional precautions (wooden planks) were required during dismantling?
  3. 3 Did contributory negligence arise from the employee’s inadvertence or inattention?

Ratio Decidendi

Following the 5 May 2006 incident, Waco assumed substantial responsibility for the system of work and supervision for the dismantling of the scaffold. Consequently, its duty of care extended to ensuring that the system of work was safe for the subcontractor's employees. Failure to adequately identify and communicate bays requiring the use of wooden planks was a breach, leading to foreseeable injury. However, the injured worker’s failure to check the components of the bay before proceeding constituted contributory negligence, assessed at 20%.

Court Disposition

Appeal and cross-appeal allowed in part; judgment adjusted for contributory negligence; costs orders varied accordingly.

Orders

  • Set aside orders 1, 2, 3 and 4 made by McCallum J on 8 August 2012.
  • Judgment for the first respondent against the appellant in the amount of $1,000,000.