In litigation where controversial decisions are not unusual, the
NSW Court of Appeal has helped balance the ledger in its decision
on negligence, the scope of the duty of care between
sub-contracting parties and the liability of the employer of a
The plaintiff, an employee and director of Reliance Pools, was
injured whilst working on the construction of a swimming pool. The
principal contractor on the building site, Uno Constructions,
contracted with Reliance Pools to construct a swimming pool. Uno
also contracted with AF Concrete Pumping to pump concrete up to the
7th floor of the building where the construction work
was being carried out. Reliance Pools in turn engaged C&J
Concrete Sprayers to spray the concrete to form the floor and walls
of the pool.
When the concrete spraying was almost complete, a C&J
employee asked AF Concrete Pumping to commence clearing the
concrete pipes using compressed air and a sponge ball. The
plaintiff tried to ask AF Concrete Pumping to secure a loose hose
however unknown to the employees of Reliance Pools and C&J, AF
Concrete Pumping had already commenced clearing the concrete pipes.
Concrete burst out of the loose pipe into the plaintiff's face.
As a result, he suffered a traumatic brain injury, facial and head
The primary judge found AF Concrete Pumping to be negligent but
Reliance Pools and C&J Concrete were not found negligent and
the employer's duty to know what was for practical purposes
unknowable was not elevated to an unrealistic standard.
An appeal by AF Concrete Pumping against the court's
findings on liability was unsuccessful. The Court of Appeal upheld
the findings of the judge at first instance that Reliance had not
breached its duty of care.
This is not the stuff of headlines, but it is an example of
commercial arrangements commonplace in small construction projects
and the liability issues that typically arise when accidents
happen. Here also, was an example of a case in which the decisions
of the courts have been consistent, and where we would suggest the
result accords with the broad legal principles applicable, with
market perceptions of the role and responsibility of independent
contracting parties and with common sense. That's something
that our clients might like to hear.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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