Ian Sutton v Erect Safe Scaffolding (Australia ) Pty Limited and Anor [2006] NSWDC 118

Ian Sutton v Erect Safe Scaffolding (Australia ) Pty Limited and Anor [2006] NSWDC 118

Erect breached its duty of care by creating and failing to remove the protruding scaffold crosstie, and Australand breached its duty as head contractor by failing to ensure that the reported hazard was rectified; those breaches directly caused the plaintiff's injury. The plaintiff was not contributorily negligent, and Dalma did not breach its duty because it was entitled to rely on the safety committee system. Erect bore two thirds responsibility and Australand one third responsibility, but clause 11 of the subcontract required Erect to indemnify Australand for damages and costs Australand was liable to pay to the plaintiff. The plaintiff's compensable damages totalled $663,369.97.

Jurisdiction
Australia
Judgment Date
14 December 2006
Procedural Posture
Civil Personal Injury Negligence Claim With Cross Claim for Contribution, Indemnity and Breach of Contract / Trial Judgment
Outcome
Verdict for the plaintiff in the sum of $663,369.97; verdict and judgment for Australand on the cross-claim against Erect.
Legal Topics
['duty of Care' 'breach of Duty' 'contributory Negligence' 'apportionment' 'non Delegable Duty of Employer' 'damages Assessment' 'contractual Indemnity' 'public Liability Insurance' 'cross Claim']
['negligence' 'personal Injury' 'workers Compensation' 'contract' 'civil Procedure'] ['duty of Care' 'breach of Duty' 'contributory Negligence' 'apportionment' 'non Delegable Duty of Employer' 'damages Assessment' 'contractual Indemnity' 'public Liability Insurance' 'cross Claim']

Case Brief

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Procedural Posture

Civil Personal Injury Negligence Claim With Cross Claim for Contribution, Indemnity and Breach of Contract / Trial Judgment

Legal Issues

  1. 1 ['Whether Erect Safe Scaffolding (Australia) Pty Limited breached its duty of care by creating or failing to remove a protruding scaffold crosstie at head height across a walkway.' 'Whether Australand (Regency) Pty Limited breached its duty of care as head contractor and site supervisor by failing to ensure that the scaffold hazard was removed or rectified.' 'Whether the plaintiff was guilty of contributory negligence.' 'Whether Dalma Formwork Services Pty Limited breached a duty to the plaintiff so that damages should be apportioned under Workers Compensation Act 1987, s 151Z.' "The quantum of the plaintiff's damages for non-economic loss, economic loss, superannuation loss, out of pocket expenses and future assistance." 'Whether Australand was entitled on its cross-claim to contribution or contractual indemnity from Erect.']

Ratio Decidendi

Erect breached its duty of care by creating and failing to remove the protruding scaffold crosstie, and Australand breached its duty as head contractor by failing to ensure that the reported hazard was rectified; those breaches directly caused the plaintiff's injury. The plaintiff was not contributorily negligent, and Dalma did not breach its duty because it was entitled to rely on the safety committee system. Erect bore two thirds responsibility and Australand one third responsibility, but clause 11 of the subcontract required Erect to indemnify Australand for damages and costs Australand was liable to pay to the plaintiff. The plaintiff's compensable damages totalled $663,369.97.

Court Disposition

Verdict for the plaintiff in the sum of $663,369.97; verdict and judgment for Australand on the cross-claim against Erect.

Orders

  • ['Verdict for the plaintiff in the sum of $663,369.97.' 'Verdict and judgment for Australand (cross-claimant) against Erect (cross-defendant) on the cross-claim.' 'The verdict on the cross-claim will be for the amount of damages which Australand pays to the plaintiff.' 'Erect must indemnify Australand against costs...