Boskov v Barclay Mowlem Construction Limited [2006] NSWSC 168

Boskov v Barclay Mowlem Construction Limited [2006] NSWSC 168

The defendant breached its duty of care as head contractor/occupier in relation to the first incident by not ensuring the site was safe—specifically, failing to remedy a concealed hole. There was no breach of duty in relation to the incident on 5 April 2000, as evidence did not reliably establish that access or egress provided by the defendant was unsafe, or that an injury on that date was caused by the defendant’s breach. The cross-claim against the employer (Murmac) fails, as no breach of duty was made out against it.

Parties
Plaintiff: Gregory Boskov; Defendant/first Cross Claimant: Barclay Mowlem Construction Limited; Defendant to First Cross Claim/second Cross Claimant: Murmac Services Pty Limited; Second Cross Defendant to Second Cross Claim: AMP General Insurance Limited; First Defendant to Second Cross Claim: GIO Workers Compensation (NSW) Limited
Jurisdiction
Australia
Judgment Date
28 April 2006
Procedural Posture
Civil / Liability Determination; Findings; Quantum to Be Determined
Outcome
Findings made; liability established for first incident only; liberty to apply for further orders on quantum or unresolved issues.
Legal Topics
Duty of Care, Negligence, Head Contractor Liability, Safe Access to Worksite, Delegation of Duty, Statutory Interpretation, Personal Injury, Cross Claims
Tort Statutory Duty Construction Law Workers Compensation Duty of Care Negligence Head Contractor Liability Safe Access to Worksite +4 more

Case Brief

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Parties

Gregory Boskov

Plaintiff

Barclay Mowlem Construction Limited

Defendant/first Cross Claimant

Murmac Services Pty Limited

Defendant to First Cross Claim/second Cross Claimant

AMP General Insurance Limited

Second Cross Defendant to Second Cross Claim

GIO Workers Compensation (NSW) Limited

First Defendant to Second Cross Claim

Procedural Posture

Civil / Liability Determination; Findings; Quantum to Be Determined

Legal Issues

  1. 1 Whether the defendant, as head contractor and/or occupier, owed a duty of care to the plaintiff in the circumstances.
  2. 2 Whether there was a breach of duty (either in negligence or statutory duty) owed by the defendant to the plaintiff in respect of the incidents on 29 October 1999 and 5 April 2000.
  3. 3 Whether failure to provide safe access or egress to/from the worksite constituted a breach of regulation 73 of the Construction Safety Regulations 1950.

Ratio Decidendi

The defendant breached its duty of care as head contractor/occupier in relation to the first incident by not ensuring the site was safe—specifically, failing to remedy a concealed hole. There was no breach of duty in relation to the incident on 5 April 2000, as evidence did not reliably establish that access or egress provided by the defendant was unsafe, or that an injury on that date was caused by the defendant’s breach. The cross-claim against the employer (Murmac) fails, as no breach of duty was made out against it.

Court Disposition

Findings made; liability established for first incident only; liberty to apply for further orders on quantum or unresolved issues.

Orders

  • Liberty to apply granted to the parties for resolution of remaining issues, including quantum and cross-claims.