AEA Constructions Pty Ltd v Wharekawa;; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176

AEA Constructions Pty Ltd v Wharekawa;; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176

Building Partners Pty Ltd did not breach its duty of care to Mr Wharekawa; there was no evidence it knew or should have known AEA would use the explosive power tool unsafely, and a reasonable employer would not have been required to intervene absent more than a theoretical risk the protocols would not be followed. The primary judge did not err in formulation of risk or in discounting non-economic loss to reflect pre-existing vulnerability, nor in assessment of economic loss based on working life estimation and vicissitude buffer. Thus, AEA’s grounds of appeal fail.

Parties
Appellant: AEA Constructions Pty Ltd; First Respondent (2018/178977): Raymond Wharekawa; Second Respondent (2018/178977); Respondent (2018/236109): Building Partners Pty Ltd
Jurisdiction
Australia
Judgment Date
19 July 2019
Procedural Posture
Appeal / Judgment After Hearing on Appeal
Outcome
Appeal dismissed with costs
Legal Topics
Negligence, Employer's Liability, Vicarious Liability, Apportionment of Damages, Breach of Duty, Assessment of Damages
Torts Personal Injury Workers Compensation Negligence Employer's Liability Vicarious Liability Apportionment of Damages Breach of Duty +1 more

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Parties

AEA Constructions Pty Ltd

Appellant

Raymond Wharekawa

First Respondent (2018/178977)

Building Partners Pty Ltd

Second Respondent (2018/178977); Respondent (2018/236109)

Procedural Posture

Appeal / Judgment After Hearing on Appeal

Legal Issues

  1. 1 Whether Building Partners Pty Ltd breached its duty of care to Mr Wharekawa and would have been liable in damages, entitling AEA to contribution from Building Partners
  2. 2 Whether the primary judge erred in defining the risk of harm for both AEA and Building Partners
  3. 3 Whether the primary judge erred in assessment of non-economic loss by applying a 10% reduction to the percentage of a most extreme case to reflect for contingency

Ratio Decidendi

Building Partners Pty Ltd did not breach its duty of care to Mr Wharekawa; there was no evidence it knew or should have known AEA would use the explosive power tool unsafely, and a reasonable employer would not have been required to intervene absent more than a theoretical risk the protocols would not be followed. The primary judge did not err in formulation of risk or in discounting non-economic loss to reflect pre-existing vulnerability, nor in assessment of economic loss based on working life estimation and vicissitude buffer. Thus, AEA’s grounds of appeal fail.

Court Disposition

Appeal dismissed with costs

Orders

  • In appeal proceedings 2018/178977 order that the appeal be dismissed with costs.
  • In appeal proceedings 2018/236109 order that the appeal be dismissed with costs.