AFA Airconditioning v Mendrecki

Case [2008] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

AFA AIRCONDITIONING PTY LTD v MENDRECKI & ORS; DOAN & ANOR v MENDRECKI & ORS

[2008] SASC 195

Judgment of The Full Court

(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)

17 July 2008

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE - GENERALLY

TORTS - NEGLIGENCE - LIABILITY FOR OTHERS' NEGLIGENCE - INDEPENDENT CONTRACTORS

TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES

Appeals against findings of liability and award of damages – plaintiff was sub-contracted by the fourth defendant (an airconditioning contractor) to install airconditioning units in the house extension of the first and second defendant – plaintiff was injured when timber joist gave way and he fell from the roof area – fall caused by faulty fixing of timber joist – the fifth defendant (the carpenter) had positioned the timber joist – trial Judge apportioned liability at 10 per cent against first and second defendants, 10 per cent against the third defendant (the builder of the extension), 30 per cent against the fourth defendant and 50 per cent against the fifth defendant – appeals by the first, second and fourth defendants and cross-appeals by plaintiff and first and second defendants.

Statutory duties – whether first, second and fourth defendants were occupiers under s 17B of Wrongs Act 1936 (SA) (“Wrongs Act”) or s 4 of Occupational Health, Safety and Welfare Act 1986 (SA) (“OHSW Act”) – whether s 23 of OHSW Act provides for a private right of action – whether it imposes a non-delegable duty – whether it imposes a higher duty than at common law – whether s17C of Wrongs Act imposes non-delegable duty – whether fourth defendant deemed an employer pursuant to s 4 of OHSW Act - whether s 72 of Development Act 1992 (SA) applies.

Held: Appeals by defendants on liability allowed – first and second defendants were occupiers pursuant to Wrongs Act and OHSW Act but fourth defendant was not an occupier – section 23 of OHSW Act does not give rise to a non-delegable duty of care – whether the duty under s 23 of OHSW Act is more onerous than at common law will depend on the particular factual circumstances – whether a non-delegable duty is imposed by s 17C of Wrongs Act is determined according to principles of negligence – the fourth defendant was not deemed an employer pursuant to s 4 of OHSW Act by reason of him being a contractor – section 72 of the Development Act does not apply to damages for personal injury.

Common law duties – whether non-delegable duties imposed on sub-contractor at common law – whether non-delegable duty because of an inherent risk of harm – whether task inherently hazardous or dangerous – whether breach by all defendants of duty to inspect and duty to communicate…

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AFA Airconditioning v Mendrecki [2008] SASC 195
Case
[2008] SASC 195
Decision Date

CaseChat Overview and Summary

In the case of AFA Airconditioning v Mendrecki, the plaintiff, a sub-contractor engaged by the fourth defendant, was injured while installing airconditioning units in a house extension, resulting from the collapse of a timber joist. The first and second defendants were the homeowners, and the third defendant was the builder responsible for the extension. The fifth defendant was the carpenter who positioned the joist. The trial judge apportioned liability among the parties and awarded damages. The first, second, and fourth defendants appealed the findings of liability and damages, while the plaintiff and the first and second defendants cross-appealed.

The central legal issues involved the allocation of liability for the plaintiff's injuries, considering the roles and responsibilities of each defendant. The court examined whether the first and second defendants, as homeowners, owed statutory duties under the Wrongs Act 1958 (SA) and the Occupational Health, Safety and Welfare Act 1986 (SA). Additionally, it assessed whether the fourth defendant, as the contractor, had a non-delegable duty of care and whether there was a breach of common law duties, including the duty to inspect and communicate. The court also considered contributory negligence by the plaintiff.

The Court of Appeal allowed the appeals by the first, second, and fourth defendants, setting aside the trial judge's findings and entering judgments against the third and fifth defendants who did not appeal. The court held that the fourth defendant, as a contractor, did not owe a non-delegable duty of care to the plaintiff. It determined that the task of installing airconditioning units was not inherently hazardous, and the defendants did not breach any duty to inspect or communicate. The plaintiff's contributory negligence was also dismissed. Regarding the cross-appeal, the court allowed the plaintiff's appeal on the assessment of damages, finding errors in the calculation of past and future loss. The judgment was revised to $988,603.96, considering the plaintiff's psychiatric condition and other factors.

The Court of Appeal's decision underscores the importance of accurately apportioning liability and assessing damages in complex negligence cases involving multiple defendants and sub-contractors. The judgment highlights the principles governing non-delegable duties, statutory obligations, and the roles of various parties in construction projects.

Orders

Orders of the court

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Background

Background to the litigation

In setting out these facts, I have had regard to the Judge’s observations as to the credit of certain aspects of the evidence of the witnesses. Sometimes the Judge made adverse findings as to credit; on other occasions he indicated that certain evidence of particular witnesses was to be preferred where there was differing evidence given by another witness. Such instances include the following: ·The Judge appears to have generally accepted the evidence of the builder;[7] but made adverse findings as to the credit of the builder in regards to what he said to Dr Doan.[8]·The Judge rejected the carpenter’s evidence as to what he had said to Mr Kurda and to Mr Nowak (who was working with the plaintiff);[9] however he accepted the carpenter’s evidence in relation to the carpentry work.[10]·The Judge rejected certain evidence of Dr Doan as to whether the builder was required to supervise the installation of the airconditioning units,[11] but accepted other aspects of Dr Doan’s evidence.[12]·The Judge appears, on the whole, to have accepted the written statements of Mr Kurda, who was unable to be called to give oral evidence.[13] ·The Judge appears to have accepted the plaintiff’s evidence about the events leading up to and including the fall,[14] but expressly rejected or accepted in a qualified form other evidence relating to the effect of his injuries, discussed hereafter. [7] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [59]-[65].[8] Ibid, [89].[9] Ibid, [110], [111], [113], [130] and [133].[10] Ibid, [113].[11] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [61] – [62] and [120].[12] Ibid, [87], [119] and [142].[13] Ibid, [68], [88], [91], [92] and [122].[14] Ibid, [20], [119], [123] and [124].Relevant primary facts The owners are the registered proprietors of a large house property situated at 100 Woodland Way, Teringie. In about 1996, the owners planned extensive additions to the house and other aspects of the property. This case concerned only the additions to the house, consisting of a number of bedrooms, family areas, a kitchen, music room and very large room called the ballroom. The particular incident giving rise to the plaintiff’s injury occurred in the roof area of the ballroom. The first defendant conducted all of the negotiations with the builder on behalf of himself and his wife. Therefore, when I refer to Dr Doan being the first defendant, that is intended to include him acting on behalf of himself and his wife, the second defendant.Contractual arrangements between the partiesContractual arrangements between the owners and the builder The contract between the owners and the builder, dated 23 July 1997, is contained in Exhibit D(3)43.[15] The builder prepared the contract after a number of preliminary meetings with the owners.[16] Following negotiations, the builder accepted a supervision fee of eight per cent above his costs, being less than the 10 per cent which he had sought.[17] The Judge found that it was part of the builder’s duties to organise the tradesmen whom he wished to bring on the site and, further, to coordinate those tradesmen with the tradesmen arranged by Dr Doan.[18] The builder was not asked to provide a quotation to supply and install airconditioning[19] and he did not agree to supervise the installation of the airconditioning units.[20][15] Referred to by Trial Judge in Mendrecki v Doan & Pham & Ors [2006] SADC 140, [140].[16] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [139].[17] Ibid, [59].[18] Ibid, [63].[19] See Exhibits D(3)41 and D(3)42; Mendrecki v Doan & Pham & Ors [2006] SADC 140, [59] and [60].[20] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [61] and [139].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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