Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146

Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146

Avopiling bore the onus to precisely plead and prove the risk of harm and failed to do so; neither Professional Contracting Pty Ltd nor Mr Bosevski were negligent; damages for future economic loss and care must be assessed on a probability basis and appropriately discounted for contingencies; part of the damages award was adjusted accordingly.

Jurisdiction
Australia
Judgment Date
27 July 2018
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court of Nsw, Common Law Division
Outcome
Appeal in 2017/117390 allowed in part; appeal in 2017/117381 dismissed
Legal Topics
['negligence' "employer's Liability" 'contributory Negligence' 'damages' 'workers Compensation' 'costs']
['torts' 'civil Procedure'] ['negligence' "employer's Liability" 'contributory Negligence' 'damages' 'workers Compensation' 'costs']

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Procedural Posture

Appeal / Judgment on Appeal From Supreme Court of Nsw, Common Law Division

Legal Issues

  1. 1 ["Whether the primary judge's formulation of risk of harm for purposes of negligence and contributory negligence was impermissible" 'Whether Professional Contracting Pty Ltd was negligent' 'Whether Mr Bosevski was guilty of contributory negligence' 'Whether the award of damages should be varied']

Ratio Decidendi

Avopiling bore the onus to precisely plead and prove the risk of harm and failed to do so; neither Professional Contracting Pty Ltd nor Mr Bosevski were negligent; damages for future economic loss and care must be assessed on a probability basis and appropriately discounted for contingencies; part of the damages award was adjusted accordingly.

Court Disposition

Appeal in 2017/117390 allowed in part; appeal in 2017/117381 dismissed

Orders

  • ['Leave to amend statement of claim refused (2017/117390)' 'Appeal in 2017/117390 allowed; orders 1–4 of primary judge set aside' 'Timetabling directions for filing competing proposed orders and submissions (2017/117390)' "Avopiling to pay 60% of Mr Bosevski's costs of the appeal (2017/117390)" "Appeal in...