A young backpacker, who was severely injured when he was crushed under a fallen timber stack, and successfully sued both his employer and the site controller, has had his award largely preserved on appeal, with the Supreme Court of New South Wales Court of Appeal upholding the initial findings as to liability and apportionment.
Background
On 2 May 2011, Daniel Hitchen was employed by RTS Holdings Pty Ltd. At the time he was a backpacker undertaking casual work. Mr Hitchen was at RTS premises at Corrimal and was required to move 3.6 m timber beams (each one weighing 17 kg) from inside a shipping container and restack them a short distance away. While moving a beam, the timber stack inside the shipping container collapsed on him, causing severe injury which ultimately resulted in partial paraplegia.
Mr Hitchen commenced proceedings in the Supreme Court of New South Wales against RTS, in negligence and claimed damages. He also sued Strategic Formwork Pty Ltd which, Mr Hitchen alleged, controlled the operations at the Corrimal yard.
RTS admitted liability. Strategic denied liability and denied it owed Mr Hitchen a duty of care.
His Honour Harrison J found in favour of Mr Hitchen as against both RTS and Strategic, and apportioned liability and damages at 40% to RTS and 60% to Strategic respectively. Damages were awarded against RTS in the sum of $725,000 and against Strategic in the sum of $1.7m, which was reduced to $1,299,773 on account of a recovery pursuant to s 151Z of the Workers Compensation Act 1987 (NSW).
On appeal
Strategic appealed the primary judge’s findings. It argued that the primary judge erred in finding that Strategic owed Mr Hitchen a duty of care and that it breached its duty of care. In turn, Mr Hitchen and Strategic both appealed the apportionment of liability.
The court found that Strategic exercised care, control and management of RTS’ operations and hence owed Mr Hitchen a duty of care, with Strategic having day-to-day responsibility for RTS’ system of work. Strategic failed in its OH&S duty to implement a safe system of work. Although Mr Hitchen was injured while working for his employer, RTS on their premises, ultimate control of the conditions of work lay with Strategic. The court found that the primary judge’s apportionment of 60% liability to Strategic was reasonable.
As to damages, the court slightly reduced the amount awarded for economic loss.
Accordingly, the court upheld the appeal in part as to damages, and otherwise dismissed the appeal: Strategic Formwork Pty Ltd v Hitchen[2018] NSWCA 54.
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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