Opoku v P & M Quality Smallgoods P/ L & others Opoku v Kaybron No 6 P/L [2012] NSWSC 478

Opoku v P & M Quality Smallgoods P/ L & others Opoku v Kaybron No 6 P/L [2012] NSWSC 478

Kaybron 6, as the employer, owed and breached a non-delegable duty to provide a safe system of work by requiring the plaintiff to clean a moving conveyor; P & M (as orchestrator and monitor of the unsafe work system) and HUT (as supervisor employer) also owed and breached duties to the plaintiff. The system of work in which the conveyor operated during cleaning exposed the plaintiff to unreasonable risk of injury. Damages were limited by the finding that the plaintiff's incapacity resolved by 23 August 2004, and no contributory negligence or limitation defence succeeded; liability was apportioned as 60% Kaybron 6, 25% P & M, and 15% HUT.

Parties
Plaintiff: Kofi Opoku; First Defendant: P & M Quality Smallgoods Pty Limited; Second Defendant: Kaybron No. 15 Pty Limited; Third Defendant: Kaybron No. 17 Pty Limited; Fourth Defendant: Trustees of the Homebush Unit Trust; Defendant in Second Proceedings & Cross Claimant: The Nominal Insurer by its agent QBE Workers Compensation (NSW) Pty Limited
Jurisdiction
Australia
Judgment Date
14 May 2012
Procedural Posture
Tort Negligence Work Injury Damages Claim / Principal Judgment Following Final Hearing
Outcome
Judgment for the plaintiff with directions to settle final orders reflecting the reasons and to stand over for costs submissions.
Legal Topics
Negligence, Employer's Non Delegable Duty of Care, Safe System of Work, Vicarious Liability, Corporate Arrangements and Liability, Contributory Negligence, Limitation Discoverable Fact, Statutory Time Limits, Contribution and Indemnity
Tort Law Workers Compensation Civil Liability Negligence Employer's Non Delegable Duty of Care Safe System of Work Vicarious Liability Corporate Arrangements and Liability +4 more

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Parties

Kofi Opoku

Plaintiff

P & M Quality Smallgoods Pty Limited

First Defendant

Kaybron No. 15 Pty Limited

Second Defendant

Kaybron No. 17 Pty Limited

Third Defendant

Trustees of the Homebush Unit Trust

Fourth Defendant

The Nominal Insurer by its agent QBE Workers Compensation (NSW) Pty Limited

Defendant in Second Proceedings & Cross Claimant

Procedural Posture

Tort Negligence Work Injury Damages Claim / Principal Judgment Following Final Hearing

Legal Issues

  1. 1 Did each defendant owe the plaintiff a duty of care?
  2. 2 Was that duty breached, particularly regarding the system of work?
  3. 3 Did contributory negligence or statutory limitation periods apply?

Ratio Decidendi

Kaybron 6, as the employer, owed and breached a non-delegable duty to provide a safe system of work by requiring the plaintiff to clean a moving conveyor; P & M (as orchestrator and monitor of the unsafe work system) and HUT (as supervisor employer) also owed and breached duties to the plaintiff. The system of work in which the conveyor operated during cleaning exposed the plaintiff to unreasonable risk of injury. Damages were limited by the finding that the plaintiff's incapacity resolved by 23 August 2004, and no contributory negligence or limitation defence succeeded; liability was apportioned as 60% Kaybron 6, 25% P & M, and 15% HUT.

Court Disposition

Judgment for the plaintiff with directions to settle final orders reflecting the reasons and to stand over for costs submissions.

Orders

  • Parties to deliver short minutes of order within seven days reflecting the reasons.
  • Matter stood over for formal orders and, in absence of agreement, costs submissions.