Which case won?

The case for the mechanic
  • The people who supervised my work at the landscaping company regularly put enormous pressure on me to complete work within an unrealistic time frame, using inadequate tools, materials in poor condition and insufficient assistance.
  • When I came to service the loader the second time, I was not aware that the bash plate had not been fully repaired.
  • The landscaping company permitted me to work on a loader that it knew to be defective and it failed to provide me with the instructions and resources to complete the work safely having regard to that defect.
  • I was not to blame for the accident and I should be compensated fully for the serious injuries, loss and damage that I have sustained because of the accident.
The case for the landscaping company
  • It was not our job to supervise or direct the mechanic in any way and we did not provide instructions on the performance of his work.
  • No-one working for our company is a qualified mechanic; that is precisely why we engaged a separate company with expertise in this area to perform that work.
  • It was the responsibility of the mechanic and the service company that employed him to ensure that adequate resources and equipment were available to complete the jobs at hand safely.
  • As a company we were and are committed to eliminating unsafe work practices and we have written evidence to support this. All yard managers and equipment mechanics were advised in writing that the penalty for unsafe work practices is instant dismissal.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a47%
case b53%

Expert commentary on the court's decision

Sian-Louise Perez
Sian-Louise PerezLawyer
“This case highlights that businesses must provide a safe place of work not just for employees, but also for any independent contractors that they retain.”
Supreme Court finds in favour of mechanic

In the case Tsoromokos v Australian Native Landscapes Pty Ltd [2018] NSWSC 321, Latham J of the Supreme Court found for the mechanic, Mr John Tsoromokos, despite noting that he was a difficult and combative witness, that his demeanour was at times belligerent and evasive and that he was prone to exaggeration.

The court formed the view that he had sometimes adopted a less than conscientious approach to the maintenance and repair of the machinery and had completed some jobs by using unsuitable tools and equipment.

The court also noted that the reliability of Mr Tsoromokos, particularly when attempting to relate the circumstances under which the bash plate fell onto his right arm, was called into question by the contemporaneous records of the accident, including statements that he had made to others.

Nevertheless, the court found that the landscaping company, Australian Native Landscapes Pty Ltd, was responsible for the condition of the loader and that the risk of harm for persons working on the loader was foreseeable and not insignificant. It was also found that a reasonable person in the company’s position would have rectified the weld.

This case highlights that businesses must provide a safe place of work not just for employees, but also for any independent contractors that they retain.

Mechanic’s contributory negligence for failing to carry out visual inspection of loader

However, the court also found contributory negligence against the mechanic, assessed at 40%. The court held that Mr Tsoromokos had failed to carry out a proper visual inspection of both sides of the loader before commencing work, taking into account his responsibility for his own safety, as well as his knowledge and experience.

One cross-claim fails, another succeeds

The landscaping company issued a cross-claim against the company that employed the mechanic for breach of contract, indemnity and/or contribution. The court found that the landscaping company must be in a position to know the risks that are occurring or likely to occur, and that the mechanic’s company, in this circumstance, did not know and could not have foreseen the risk of harm to him.

Interestingly, the mechanic’s company in turn succeeded in a cross claim against the landscaping company, seeking indemnity for payments made pursuant to Section 151Z (1)(d) of the Workers Compensation Act 1987 (NSW).

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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