Wharekawa v AEA Constructions Pty Ltd; Building Partners Pty Ltd v AEA Constructions Pty Ltd [2018] NSWSC 684

Wharekawa v AEA Constructions Pty Ltd; Building Partners Pty Ltd v AEA Constructions Pty Ltd [2018] NSWSC 684

AEA Constructions Pty Ltd owed and breached a duty of care to the plaintiff by failing to prevent or warn of the risk that an explosive powered nail gun could penetrate the party wall and cause injury. The risk was not obvious or inherent. The plaintiff was not contributorily negligent, nor did his employer breach its duty of care. Damages were assessed with discount for pre-existing spinal degeneration, but most loss was attributable to the accident. The employer was entitled to indemnity for workers compensation outlaid.

Parties
Plaintiff: Raymond Wharekawa; Defendant/cross Claimant: AEA Constructions Pty Ltd; Plaintiff/cross Defendant: Building Partners Pty Ltd
Jurisdiction
Australia
Judgment Date
17 May 2018
Procedural Posture
Civil Negligence/personal Injury; Statutory Indemnity / Principal Judgment at Trial
Outcome
Judgment for the plaintiff; damages awarded; indemnity and partial credit for employer; costs awarded to plaintiffs.
Legal Topics
Negligence, Duty of Care, Breach, Causation, Contributory Negligence, Obvious Risk, Inherent Risk, Statutory Indemnity, Assessment of Damages
Torts Personal Injury Workers Compensation Negligence Duty of Care Breach Causation Contributory Negligence +4 more

Case Brief

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Parties

Raymond Wharekawa

Plaintiff

AEA Constructions Pty Ltd

Defendant/cross Claimant

Building Partners Pty Ltd

Plaintiff/cross Defendant

Procedural Posture

Civil Negligence/personal Injury; Statutory Indemnity / Principal Judgment at Trial

Legal Issues

  1. 1 Whether AEA Constructions Pty Ltd owed and breached a duty of care to the plaintiff resulting in injury
  2. 2 Whether the risk was obvious or inherent under the Civil Liability Act 2002 (NSW)
  3. 3 Whether the plaintiff was contributorily negligent

Ratio Decidendi

AEA Constructions Pty Ltd owed and breached a duty of care to the plaintiff by failing to prevent or warn of the risk that an explosive powered nail gun could penetrate the party wall and cause injury. The risk was not obvious or inherent. The plaintiff was not contributorily negligent, nor did his employer breach its duty of care. Damages were assessed with discount for pre-existing spinal degeneration, but most loss was attributable to the accident. The employer was entitled to indemnity for workers compensation outlaid.

Court Disposition

Judgment for the plaintiff; damages awarded; indemnity and partial credit for employer; costs awarded to plaintiffs.

Orders

  • Judgment for Raymond Wharekawa against AEA Constructions Pty Ltd for $1,486,783.
  • AEA Constructions Pty Ltd to pay costs of Raymond Wharekawa.