Texcrete Pty Limited v Khavin & 1 Ors [2003] NSWCA 337

Texcrete Pty Limited v Khavin & 1 Ors [2003] NSWCA 337

The appeal was dismissed because the occupier (Texcrete) breached its absolute statutory duty to securely fence a dangerous machine under s27 of the FSI Act. This duty is not-dependent on the impracticability of fencing or the skill of the injured party; Texcrete's removal of the guard materially contributed to the injury. There was no breach of duty in negligence by either the appellant or the second respondent employer; the employer was entitled to rely on the absolute statutory duty of the occupier and the employee (Khavin) was experienced and responsible for his own system of work. The damages awarded were within the permissible discretionary range and not excessive.

Jurisdiction
Australia
Judgment Date
19 November 2003
Procedural Posture
Appeal / Judgment on Appeal and Cross Appeal
Outcome
Appeal and cross-appeal dismissed
Legal Topics
['breach of Statutory Duty' 'negligence—duty of Care' 'workplace Injury' 'damages Assessment' 'liability of Occupier' 'liability of Employer']
['tort Law' 'statutory Duty' 'employment Law' 'personal Injury'] ['breach of Statutory Duty' 'negligence—duty of Care' 'workplace Injury' 'damages Assessment' 'liability of Occupier' 'liability of Employer']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether the occupier (Texcrete Pty Limited) breached its absolute statutory duty under s27 of the Factories, Shops & Industries Act 1962 by failing to fence a dangerous machine.' 'Whether negligence was established against the appellant occupier.' 'Whether the second respondent employer was liable in negligence to the first respondent employee.' 'Whether s151Z(2) of the Workers Compensation Act 1987 (NSW) operated to reduce damages.' 'Whether the damages awarded for future economic capacity and general damages were excessive.']

Ratio Decidendi

The appeal was dismissed because the occupier (Texcrete) breached its absolute statutory duty to securely fence a dangerous machine under s27 of the FSI Act. This duty is not-dependent on the impracticability of fencing or the skill of the injured party; Texcrete's removal of the guard materially contributed to the injury. There was no breach of duty in negligence by either the appellant or the second respondent employer; the employer was entitled to rely on the absolute statutory duty of the occupier and the employee (Khavin) was experienced and responsible for his own system of work. The damages awarded were within the permissible discretionary range and not excessive.

Court Disposition

Appeal and cross-appeal dismissed

Orders

  • ['Appeal and cross-appeal dismissed.' 'Appellant to pay the costs of the first and second respondents.']