AF Concrete Pumping Pty Ltd v Ryan & Ors

[2014] NSWCA 346

NSW Court of Appeal

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Interrogate

Catchwords

1. Employment Law
2. › Employer's non-delegable duty of care
3. › Safe system of work
4. › Where employer is independent contractor and employee injured by negligence of another independent contractor
5. › Whether employer failed to provide safe system of work
6. › Whether employer liable for independent contractor's negligence where contractor not engaged by employer
7. › Workers Compensation Act 1987 (NSW), s 151Z
1. Workers' Compensation
2. › Calculation of degree of permanent impairment
3. › Expert evidence
4. › Whether assessment made in accordance with WorkCover Guides
5. › Clinical judgment in applying assessment methodology
6. › Whether CT scan or MRI required where other evidence of intracranial pathology
7. › Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 322(1), 322(3)
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Calderbank offers
5. › Whether correspondence constituted offer capable of acceptance so as to settle proceedings
6. › Calderbank v Calderbank [1976] Fam 93
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Unreasonable conduct
5. › Denial of liability in disregard of known facts
6. › Maintaining cross-claims where no arguable case
7. › Whether unsuccessful defendant liable for successful defendant's costs on indemnity basis

Quick Take

An employer's non-delegable duty of care to its employees does not extend to requiring the employer to devise or control the system of work of another independent contractor engaged by the principal contractor, even where the operations are interdependent. The references to 'independent contractor' in Leighton Contractors v Fox [2009] HCA 35 at [21] are confined to independent contractors of the employer whose liability is in question. The WorkCover Guides for evaluation of permanent impairment do not mandate a 'recipe approach'; where a specialist finds evidence of significant intracranial pathology consistent with traumatic brain injury through means other than CT scan or MRI, with a satisfactory explanation for the absence of CT/MRI findings, the assessment may still comply with cl 5.8. A Calderbank offer must be capable of acceptance so as to result in settlement of the proceedings; an offer by one defendant to another to contribute to a settlement does not constitute a Calderbank offer by the plaintiff.