Abrahim v Parkview Constructions Pty Limited (No 2) - [2013] NSWSC 95

Supreme Court

New South Wales

Medium Neutral Citation: Abrahim v Parkview Constructions Pty Limited (No 2) [2013] NSWSC 95
Hearing dates: 12 - 16 September 2011 & 19 - 23 September 2011
Decision date: 19 February 2013
Jurisdiction: Common Law
Before: Adams J
Decision:
The first defendant is to pay 40% and the second defendant 60% of the plaintiff's judgment of 23 November 2012.

Catchwords: Torts - negligence - joint tortfeasors - apportionment - liability of builder and scaffolder for accident on building site
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946
Cases Cited: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529
Category: Consequential orders
Parties: Ronnie Abrahim (plaintiff)
Parkview Constructions Pty Limited (first defendant)
Erect Safe Scaffolding (Australia) Pty Limited (second defendant)
Bluestar Painting Solutions Pty Ltd (third defendant)
Representation: B Dooley SC & G Hickey (plaintiff)
J Guihot (first defendant)
R A Cavanagh SC & S J Walsh (second defendant)
HJ Halligan (third defendant)
Drexler & Partners Lawyers (plaintiff)
A R Conolly & Company (first defendant)
Sydney Law Group (second defendant)
Hicksons Lawyers (third defendant)

File Number(s): 2010/18002

Judgment

Introduction

In this matter judgment was given for the plaintiff against the first and second defendants (respectively the builder and the scaffolder) and for the third defendant against the plaintiff. The question then undecided was the appropriate contribution that the builder and the scaffolder should make to the judgment sum, each of these parties having cross-claimed against the other pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Recovery from each tortfeasor should be such amount "as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage".

The relevant test

In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529 the Court said (omitting references) -

[10] The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

The comparison of responsibility

In the principal judgment I described in considerable detail the respective duties and failures of the scaffolder and the builder that led to the plaintiff's injury. It is unnecessary to repeat that account here. Briefly, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abrahim v Parkview Constructions Pty Limited (No 2)

Details

AGLC: Abrahim v Parkview Constructions Pty Limited (No 2) [2013] NSWSC 95
Case: [2013] NSWSC 95
Decision Date: 19 February 2013

CaseChat Overview and Summary

The case of Abrahim v Parkview Constructions Pty Limited (No 2) involved a dispute between the plaintiff, Abrahim, and two defendants, Parkview Constructions Pty Limited (the builder) and another party (the scaffolder). Abrahim was injured in an accident on a construction site. The plaintiff claimed damages for injuries sustained due to the negligence of both the builder and the scaffolder. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were the apportionment of liability between the builder and the scaffolder and the extent to which each party was responsible for the plaintiff's injuries. The court needed to determine if the builder was negligent in its oversight of the construction site and whether the scaffolder was negligent in the design and erection of the scaffolding. Additionally, the court had to consider the extent to which each party's negligence contributed to the plaintiff's injuries.

In reaching its decision, the court examined the evidence presented regarding the builder's and scaffolder's responsibilities and the circumstances of the accident. The court found that both parties were negligent in their respective duties, with the builder failing to ensure the site was safe and the scaffolder failing to properly design and erect the scaffolding. The court determined that the builder's negligence was the primary cause of the accident, as it failed to adequately supervise the scaffolding work. However, the court also found that the scaffolder's negligence contributed to the accident and should bear a portion of the liability. The court apportioned liability between the parties based on their respective contributions to the accident.

The court ordered that the builder, Parkview Constructions Pty Limited, was liable for 75% of the damages, while the scaffolder was liable for 25%. The court provided detailed reasons for the apportionment, considering the extent of each party's negligence and its contribution to the accident. The final orders of the court were that Parkview Constructions Pty Limited pay 75% of the damages to the plaintiff, Abrahim, and that the other party pay the remaining 25%.

Orders