Kos v Dolso Constructions Pty Ltd & Ors [2006] NSWSC 1075

Kos v Dolso Constructions Pty Ltd & Ors [2006] NSWSC 1075

Dolso was the plaintiff's employer and breached both its common law duty of care and regulations 73(3) and 73(8) by leaving an unsecured and unwarned piece of plywood over a hole in platform 1 while the plaintiff was required to remove loose plywood from that platform. The risk of a worker accidentally removing the cover and falling was reasonably foreseeable, inexpensive precautions such as securing the plywood or warning of the hole were available, and the plaintiff was unaware of the hole and was not contributorily negligent. For practical purposes the plaintiff had been unemployable since the accident, and damages were assessed under the pre-2001 Workers Compensation Act 1987 provisions.

Jurisdiction
Australia
Judgment Date
13 October 2006
Procedural Posture
Common Law Personal Injury Proceedings Arising From an Industrial Accident on a Building Site, Alleging Negligence and Breaches of the Construction Safety Act 1912 / Judgment After Hearing; the Plaintiff's Claim Against Leighton Was Dismissed and the Cross Claims Against Proform Systems Were Dismissed Under Terms of Settlement Filed on 10 October 2006, With the Matter Proceeding Against Dolso
Outcome
Judgment for the plaintiff against Dolso Constructions Pty Limited in the sum of $885,775.00, with no deduction for contributory negligence.
Legal Topics
['industrial Accident on Building Site' "employer's Duty of Care" 'breach of Construction Safety Act Regulations' 'contributory Negligence' 'economic Loss and Loss of Earning Capacity' 'non Economic Loss']
['torts' 'negligence' 'workers Compensation' 'construction Safety' 'personal Injury Damages'] ['industrial Accident on Building Site' "employer's Duty of Care" 'breach of Construction Safety Act Regulations' 'contributory Negligence' 'economic Loss and Loss of Earning Capacity' 'non Economic Loss']

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Procedural Posture

Common Law Personal Injury Proceedings Arising From an Industrial Accident on a Building Site, Alleging Negligence and Breaches of the Construction Safety Act 1912 / Judgment After Hearing; the Plaintiff's Claim Against Leighton Was Dismissed and the Cross Claims Against Proform Systems Were Dismissed Under Terms of Settlement Filed on 10 October 2006, With the Matter Proceeding Against Dolso

Legal Issues

  1. 1 ["Whether Dolso was the plaintiff's employer at the time of the accident" 'Whether Dolso breached its duty of care and regulations made under the Construction Safety Act 1912 by leaving an unsecured piece of plywood over a hole in a work platform' 'Whether the plaintiff was contributorily negligent' 'Whether the plaintiff had any residual earning capacity after the accident' 'Assessment of damages under the Workers Compensation Act 1987 before the 2001 amendments']

Ratio Decidendi

Dolso was the plaintiff's employer and breached both its common law duty of care and regulations 73(3) and 73(8) by leaving an unsecured and unwarned piece of plywood over a hole in platform 1 while the plaintiff was required to remove loose plywood from that platform. The risk of a worker accidentally removing the cover and falling was reasonably foreseeable, inexpensive precautions such as securing the plywood or warning of the hole were available, and the plaintiff was unaware of the hole and was not contributorily negligent. For practical purposes the plaintiff had been unemployable since the accident, and damages were assessed under the pre-2001 Workers Compensation Act 1987 provisions.

Court Disposition

Judgment for the plaintiff against Dolso Constructions Pty Limited in the sum of $885,775.00, with no deduction for contributory negligence.

Orders

  • ['I enter judgment in favour of the plaintiff against Dolso in the sum of of $885,775.00' "Leave is granted to Dolso to deduct from the plaintiff's judgment the amount of compensation paid to or on his behalf by Proform/Allianz Workers Compensation (NSW) and to pay that amount directly to Proform/Allianz Workers...