Michael Perigo v Workers Compensation Nominal Insurer and Anor (No 2) [2012] NSWSC 830

Michael Perigo v Workers Compensation Nominal Insurer and Anor (No 2) [2012] NSWSC 830

Waco owed a limited principal/subcontractor duty before 5 May 2006, but after the Salisbury incident it assumed control of the dismantling system and substantial responsibility for direct supervision. Bradley Tracey owed the plaintiff an employer's duty to take reasonable care. It was not negligent merely to use ledgers in place of transoms or to construct the particular bay with one ledger and one transom, but the defendants breached their duties by failing during dismantling to identify and highlight the bays where ledgers had replaced transoms so scaffolders would know to use wooden planks. That failure probably caused the plaintiff to overlook the ledger, use metal planks and fall....

Jurisdiction
Australia
Judgment Date
16 July 2012
Procedural Posture
Civil Negligence Damages Claim Arising From Workplace Scaffolding Injury, With Cross Claim for Contribution and Indemnity / Principal Judgment on Liability, Contributory Negligence and Apportionment After Quantum Was Agreed
Outcome
Verdict for the plaintiff; liability apportioned 25% against the first defendant and 75% against the second defendant; plaintiff held not to have been contributorily negligent.
Legal Topics
["duty of Care of Principal to Subcontractor's Employee" "employer's Non Delegable Duty" 'safe System of Work' 'scaffolding Dismantling' 'breach of Duty' 'causation' 'contributory Negligence' 'apportionment Between Defendants']
['torts' 'negligence' 'workers Compensation' 'civil Liability' 'occupational Health and Safety' 'damages'] ["duty of Care of Principal to Subcontractor's Employee" "employer's Non Delegable Duty" 'safe System of Work' 'scaffolding Dismantling' 'breach of Duty' 'causation' 'contributory Negligence' 'apportionment Between Defendants']

Case Brief

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Procedural Posture

Civil Negligence Damages Claim Arising From Workplace Scaffolding Injury, With Cross Claim for Contribution and Indemnity / Principal Judgment on Liability, Contributory Negligence and Apportionment After Quantum Was Agreed

Legal Issues

  1. 1 ['Whether Waco Kwikform Pty Limited owed Michael Perigo a duty of care and the content of that duty before and after the Salisbury incident on 5 May 2006.' 'Whether Bradley Tracey Scaffolding Services Pty Limited, represented by the Workers Compensation Nominal Insurer, breached its duty of care to its employee.' 'Whether the use of ledgers in place of transoms, or a bay containing one ledger and one transom, constituted negligence.' 'Whether the defendants breached the applicable standard of care by failing during dismantling to identify or highlight bays in which ledgers had been used in place of transoms.' "Whether any breach caused the plaintiff's fall and injuries." 'Whether the plaintiff was contributorily negligent by failing to notice the ledger or by failing to attach his lanyard.' 'How liability should be apportioned between the first and second defendants.']

Ratio Decidendi

Waco owed a limited principal/subcontractor duty before 5 May 2006, but after the Salisbury incident it assumed control of the dismantling system and substantial responsibility for direct supervision. Bradley Tracey owed the plaintiff an employer's duty to take reasonable care. It was not negligent merely to use ledgers in place of transoms or to construct the particular bay with one ledger and one transom, but the defendants breached their duties by failing during dismantling to identify and highlight the bays where ledgers had replaced transoms so scaffolders would know to use wooden planks. That failure probably caused the plaintiff to overlook the ledger, use metal planks and fall....

Court Disposition

Verdict for the plaintiff; liability apportioned 25% against the first defendant and 75% against the second defendant; plaintiff held not to have been contributorily negligent.

Orders

  • ['Verdict for the plaintiff apportioned as follows: 25% against the first defendant; 75% against the second defendant.' 'Plaintiff held not to have been contributorily negligent.']