Ross Gazis v Gual Pty Limited - Formerly known as Sermacs Australia Pty Ltd (under external administration and/or controller appointed) [2014] NSWSC 1617

Ross Gazis v Gual Pty Limited - Formerly known as Sermacs Australia Pty Ltd (under external administration and/or controller appointed) [2014] NSWSC 1617

The Club, as occupier, owed and breached a duty of care to the plaintiff by failing to implement a safe system or training for handling trolleys by persons in the plaintiff's position, knowing or reasonably foreseeing he would, in his role, move such trolleys. The employer also breached its non-delegable duty to ensure its employee's safety, but its ability to do so was limited. Sermacs was found not liable, not being the occupier nor employer, and not having relevant control. Apportionment attributed 75% liability to the Club and 25% to the employer. There was no contributory negligence by the plaintiff.

Jurisdiction
Australia
Judgment Date
17 November 2014
Procedural Posture
Tort Personal Injury (negligence) / Final Judgment After Trial
Outcome
Judgment for the plaintiff on liability and damages, with apportionment as specified; plaintiff to provide Short Minutes of Order reflecting the judgment.
Legal Topics
['negligence' 'duty of Care' 'workplace Injury' "occupier's Liability" 'vicarious/proportionate Liability' 'insurance Law' 'contributory Negligence' 'damages']
['tort Law' 'personal Injury Law'] ['negligence' 'duty of Care' 'workplace Injury' "occupier's Liability" 'vicarious/proportionate Liability' 'insurance Law' 'contributory Negligence' 'damages']

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Procedural Posture

Tort Personal Injury (negligence) / Final Judgment After Trial

Legal Issues

  1. 1 ['Whether the Club owed the plaintiff (a subcontractor’s employee) a duty of care as occupier to take reasonable steps to prevent foreseeable risk of harm from its work practices.' 'Whether the plaintiff’s employer and/or Sermacs owed a duty of care and whether each breached it.' 'Assessment of causation under the Civil Liability Act 2002 and at common law.' 'Assessment and apportionment of liability among defendants and cross-claimant parties.' 'Assessment of damages, including economic loss, gratuitous care, and non-economic loss.']

Ratio Decidendi

The Club, as occupier, owed and breached a duty of care to the plaintiff by failing to implement a safe system or training for handling trolleys by persons in the plaintiff's position, knowing or reasonably foreseeing he would, in his role, move such trolleys. The employer also breached its non-delegable duty to ensure its employee's safety, but its ability to do so was limited. Sermacs was found not liable, not being the occupier nor employer, and not having relevant control. Apportionment attributed 75% liability to the Club and 25% to the employer. There was no contributory negligence by the plaintiff.

Court Disposition

Judgment for the plaintiff on liability and damages, with apportionment as specified; plaintiff to provide Short Minutes of Order reflecting the judgment.

Orders

  • ['Plaintiff to file and serve Short Minutes of Order reflecting the foregoing calculations, including the workforce compensation proportioning and additional vicissitudes.' 'Order to account for all cross-claims and liability apportionment; further directions for settling orders provided.']