Texcrete Pty Limited v Khavin & 1 Ors

[2003] NSWCA 337

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort Law
2. › Breach of statutory duty
3. › Factories legislation
4. › Duty to fence dangerous machinery
5. › Absolute duty of occupier
6. › Whether worker's own conduct broke causal connection
7. › Whether impracticability of fencing is a defence
8. › Factories, Shops & Industries Act 1962 (NSW), s 27
1. Tort Law
2. › Negligence
3. › Duty of care of occupier to non-employee worker
4. › Whether duty breached where worker was expert and chose method of work
5. › Whether occupier entitled to rely on worker's expertise
1. Tort Law
2. › Negligence
3. › Employer's duty of care
4. › Duty to take reasonable care for safety of employees
5. › Whether employer liable where highly skilled employee chose own method of work
6. › Whether employer entitled to rely on employee's expertise
7. › Whether risk reasonably foreseeable
1. Damages
2. › Assessment
3. › Loss of future earning capacity
4. › General damages
5. › Whether award excessive
6. › Appellate intervention in discretionary assessment

Quick Take

The absolute duty to fence dangerous machinery under s27 of the Factories, Shops & Industries Act 1962 is not negated by the impracticability of fencing, nor by the fact that the injured worker was an expert who chose his own method of work. An occupier who removes a guard from machinery, thereby inviting an expert worker to proceed without it, cannot rely on the worker's expertise to break the causal chain. An employer is not negligent in sending a highly skilled specialist to perform routine work without additional supervision or equipment where the risk arose from the occupier's removal of a guard.