On the night of the accident, the plaintiff, a security guard employed by Sydney Night Patrol, was carrying out his duties on a site occupied by the defendant, then known as Leighton Contractors Pty Ltd. In the regular course of his patrol, the plaintiff moved to close a gate that he had opened, and in doing so fell down a ditch. He sustained injuries to his knee which left him unable to continue working in the position.
Although the claimed damages were unchallenged by the defendants, the way the plaintiff claimed to have fallen was disputed. This matter was discussed in depth by the court, in which his Honour found in favour of the plaintiff in terms of the circumstances surrounding the fall.
See at 85 the decision of the NSW Supreme Court stated:
‘I accept the plaintiff’s evidence. He fell or walked into an unguarded drainage ditch as he was retrieving the gate which had swung fully open. There was no webbing cordoning off the ditch. There was no post there at the time of his accident preventing the gate from swinging open to the point of the fence.’
Further, the elements of causation and liability were established, namely that the defendant owed a duty of care to the plaintiff to protect him from falling in the ditch, and that duty was breached by not covering the hole or illuminating the area in which the ditch was located. The defendants claimed for contributory negligence, however, although this failed to satisfy the Court.
The plaintiff was awarded heads of damages such as past economic loss, future earning capacity, and future care, with the total sum of damages being $1,212,281.
The Decision of Hubbard v CPD Contractors Pty Ltd (No 2) NSWSC 1922 can be read in full here: https://www.caselaw.nsw.gov.au/decision/176b73367cdaf33bfe83e82d
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