Author: Mathew Shammas
Judgement date: 25 February 2020
Citation: Charter Hall Real Estate Management Services (NSW) Pty Limited v State of New South Wales  NSWCA 26
Jurisdiction: NSW Court of Appeal1
Following the injury, the Worker began receiving weekly payments from the workers compensation insurer. The plaintiff's claim against the owner failed and only proceeded against one of two managers as the other manager was deregistered.
The primary judge held that the defendant, being the manager of the shopping centre, owed a duty to take reasonable care to avoid a foreseeable and significant risk of injury to entrants. This included avoiding such a risk to the Worker.
The primary judge found that the defendant breached its duty of care as it had actual knowledge of the risk, but failed to take reasonable steps to remove that risk. He assessed the damages to which the Worker would have been entitled had he sued the defendant to be $984,268. He rejected the defendant's claim that the plaintiff as the Worker’s employer was guilty of negligence and rejected its claim that the Worker was contributorily negligent.
The amount of notional damages assessed by the primary judge was well in excess of the workers’ compensation payments made in the six years prior to the commencement of proceedings. Accordingly, the primary judge found that the plaintiff was entitled to be indemnified in respect of all of the workers’ compensation payments for which it claimed indemnity, being payments made for the period between 22 December 2011 and 29 November 2018, with interest. Judgment was entered for the plaintiff in the sum of $325,599.36.
The defendant appealed.
The defendant unsuccessfully submitted that the risk was insignificant because of the obviousness of the risk. The Court of Appeal found that the risk was not obvious. It followed that the risk was not insignificant. The Court reasoned that the Worker (from his evidence on cross-examination) did not perceive a risk at the time and that a reasonable person in his position would not have perceived the risk, under the circumstances.
The defendant was also unsuccessful in arguing that the plaintiff should have given their employees a warning following an inspection of the premises. Ultimately, the Court of Appeal held that no knowledge of the risk could be imputed to the plaintiff, which was found not to be liable at all.
The court held the Worker by accidentally knocking the locking bar (presumably at its lower point where it obtruded beyond the vertical towards the ladder) was accidental inadvertence, not amounting to contributory negligence (Podrebersek v Australian Iron and Steel Pty Ltd  HCA 34).2
The Court found in favour of the plaintiff by dismissing the appeal with costs.
The case reaffirms the principle that although an employer owes an employee a non-delegable duty of care, it does not follow that this always translates into a breach of that duty by the employer. Importantly, this case reaffirms the ability of a workers compensation insurer to recover all payments made to an injured Worker under section 151Z of the Workers Compensation Act 1987 from a negligent third party.
1 Macfarlan JA, White JA and Simpson AJA
2 (1985) 59 ALJR 492)