Employer not liable when it did not know the risk of harm on construction site: a discount for vicissitudes to be applied to all future economic losses including damages for treatment and care

Date: September 5, 2018


Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146.

Key Points: 


The Facts:


Supreme Court Decision:

In regard to the negligence proceedings, the primary judge found that Avopiling had been negligent and awarded Mr Bosevski damages in the sum of $2,632,390.93. The primary judge found that Professional Contracting had not been negligent, and Mr Bosevski had not been guilty of contributory negligence.

In the indemnity proceedings, the primary judge found in favour of the Workers Compensation Nominal Insurer in the sum of $919,225.23 and rejected Avopiling’s defence that Professional Contracting had also been negligent.

Avopiling appealed in respect of both the negligence proceedings and the indemnity proceedings.


The Court of Appeal considered:

(i) Whether the primary judge formulated the risk of harm for the purposes of the negligence of Professional Contracting Pty Ltd and the contributory negligence of Mr Bosevski in a way that was impermissible.

(ii) Whether the primary judge erred in finding that Professional Contracting Pty Ltd was not negligent.

(iii) Whether the primary judge erred in not making a finding of contributory negligence by Mr Bosevski.

(iv) Whether the primary judge erred in his assessment of damages.

Court of Appeal Decision:


Lessons Learnt:

For more information, please contact:

Iona Sjahadi
Senior Associate
+61 (2) 9376 1128

Nathan Hepple
+61 (2) 9376 1100

Download the PDF here.

Disclaimer: This article is intended for informational purposes only and should not be construed as legal advice. For any legal advice please contact us.

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