Kevin Robert Smith v Robert Arthur Duncan & Kerry Margaret Duncan Kevin Robert Smith v Choice HR (Maitland) & Ors [2012] NSWDC 39

Kevin Robert Smith v Robert Arthur Duncan & Kerry Margaret Duncan Kevin Robert Smith v Choice HR (Maitland) & Ors [2012] NSWDC 39

Both the labour hire employer (Choice HR) and the host employer (Mr and Mrs Duncan) breached their duties of care by failing to conduct adequate risk assessment of the manual handling task and to ensure the sweeper was not operating when approached, causing foreseeable injury to the plaintiff. Mr and Mrs Duncan bear 75% of liability and Choice HR 25%. No contributory negligence on the part of the plaintiff.

Jurisdiction
Australia
Judgment Date
30 March 2012
Procedural Posture
Civil Action, Personal Injury / Judgment After Trial; Proceedings Adjourned for S 151 Z, Costs and Further Orders
Outcome
Liability found against all defendants; apportionment 75% (host employers) and 25% (Choice HR); quantum of damages assessed but proceedings adjourned to confirm s 151Z issues, costs, interest, and entry of final orders.
Legal Topics
['industrial Accident' 'negligence' "employer's Duty of Care" 'manual Handling' 'occupational Health & Safety' 'apportionment of Liability' 'contributory Negligence' 'damages Assessment']
['tort Law' 'workplace Health and Safety Law'] ['industrial Accident' 'negligence' "employer's Duty of Care" 'manual Handling' 'occupational Health & Safety' 'apportionment of Liability' 'contributory Negligence' 'damages Assessment']

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Procedural Posture

Civil Action, Personal Injury / Judgment After Trial; Proceedings Adjourned for S 151 Z, Costs and Further Orders

Legal Issues

  1. 1 ['Whether defendants breached their duty of care regarding manual handling and operation of machinery' 'Whether there was contributory negligence by the plaintiff' 'Apportionment of liability between employer and host employer' 'Extent of the plaintiff’s entitlement to damages']

Ratio Decidendi

Both the labour hire employer (Choice HR) and the host employer (Mr and Mrs Duncan) breached their duties of care by failing to conduct adequate risk assessment of the manual handling task and to ensure the sweeper was not operating when approached, causing foreseeable injury to the plaintiff. Mr and Mrs Duncan bear 75% of liability and Choice HR 25%. No contributory negligence on the part of the plaintiff.

Court Disposition

Liability found against all defendants; apportionment 75% (host employers) and 25% (Choice HR); quantum of damages assessed but proceedings adjourned to confirm s 151Z issues, costs, interest, and entry of final orders.

Orders

  • ['The proceedings are adjourned to a date to be fixed to deal with s 151Z issues, costs, any claim for interest and for the entry of final orders.']