Young v Masselos & Co

Young v Masselos & Co - [2010] NSWDC 169 - NSWDC 2009 case summary — Zoe

[25]

Period Date range Prescribed interest rate Days Interest amount

 01.07.2006 to 31.12.2006  9%                        184   $2193.86

 01.01.2007 to 05.03.2009  10%                       794   $10518.89

 06.03.2009 to 08.09.2009  9%                        186   $2217.71

 09.09.2009 to 30.06.2010  9%                        294   $3505.41

 01.07.2010 to 13.08.2010  9.5%                      44    $553.76
 Total                     -                         -     $18989.63

Parties

Applicant/Plaintiff:

Young

Respondent/Defendant:

Masselos & Co

Cases Cited (13)

CITATION: Young v Masselos & Co [2010] NSWDC 169

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Hackshaw v Shaw [1984] HCA 84 per Deane J at [26]; (1984) 155 CLR 614 Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 CASES CITED: Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Papatonakis v Australian Telecommunications Commission & Anor [1985] HCA 3; (1985) 156 CLR 7 Tipper v Williams (No. 2) [1994] NSWCA 312

On the assumption that the plaintiff had established a partial incapacity for work justifying receipt of $300 per week as an incapacity payment pursuant to s 40 of the WC Act, and without regard to modest s 66 entitlements in view of the assessed percentage of impairment, Mr O'Halloran's assessment was for a further 38 years of statistical life expectancy. He was of the opinion that the valuation of future workers' compensation rights should proceed in conformity with the decision in Tipper v Williams (No. 2) [1994] NSWCA 312.

There is no issue that as occupier of the decommissioned naval base site, the Commonwealth owed a general duty of care to entrants onto its premises. The scope and burden of that duty was to take reasonable care to prevent or minimize the risk of damage from unusual danger of which the occupier either knew or ought to have known, having regard to all the circumstances : Papatonakis v Australian Telecommunications Commission & Anor [1985] HCA 3; (1985) 156 CLR 7.

In my view the analysis of the liability position of the employer towards the plaintiff is well settled and obvious, and it does not require as detailed an evaluation as the liability position of the employer : Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13].

In weighing the respective culpabilities of the occupier and the employer, I consider that a just and equitable apportionment of responsibility would have required the employer to have borne the greater share of such responsibility. I take this view because the employer retained the requisite degree of control over the plaintiff's work routines and activities. In contrast, the occupier merely provided access to the premises which were known to be a demolition site with restricted access and which incorporated inherent hazards requiring special consideration in devising a safe system for implementing security patrols, this being a non-delegable duty of care : Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 688.

[1988] HCA 64

(1987) 162 CLR 479

(1984) 155 CLR 614

(1988) 166 CLR 351

(1984) 154 CLR 672

(1985) 156 CLR 7

[1984] HCA 84

Cited By (1)

Steve Masselos & Co v Young

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Cases Cited (13)

Cited By (1)