Ayyoub v BC Services & Maintenance Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Ayyoub v BC Services & Maintenance Pty Ltd [2023] NSWDC 419

Hearing dates:

3, 4, 5, 6 October 2023

Decision date:

06 October 2023

Jurisdiction:

Civil

Before:

Newlinds SC DCJ

Decision:

1.   Plaintiff’s claim dismissed.

2.   The plaintiff to pay the costs of the first and second defendants.

3.   I will allow either party to apply to vary the costs orders, so long as notice of such application is received by email in my chambers by 4pm on Monday 9 October 2023.

4.   The exhibits can be returned after 28 days.

Catchwords:

CIVIL – risk of harm – causation – medical causation – damages – insurance policy: construction of “incidental to the conduct of the business”

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5, 5B, 5B(1), 5B(2) 5B(2)(a), 16

Civil Liability (Third Party Claims Against Insurers) Act 2017,s 4

Cases Cited:

BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145

Uniting Church of Australia Property Trust (New South Wales) v Miller 91 NSWLR 752

Tapp v The Australian Bushmen’s Campdraft and Rodeo Association [2022] HCA 11

Category:

Principal judgment

Parties:

Ismael Ayyoub (Plaintiff)
BC Services & Maintenance Pty Ltd (First Defendant)
Insurance Australia Group Ltd t/as CGU Insurance (ABN 60 090 739 923) (Second Defendant)

Representation:

Counsel:
R Di Michiel (Plaintiff)
No appearance for First Defendant
C Purdy (Second Defendants)
Solicitors:
Premier Lawyers (Plaintiff)
Holman Webb Lawyers (Second Defendant)

File Number(s):

2020/335084

Publication restriction:

None

JUDGMENT: ex tempore

Introduction

1. HIS HONOUR: On 29 November 2017, the plaintiff alleges that, whilst investigating some suspicious noise in his backyard at 12 Shadforth Street, Wiley Park, a property which he occupied pursuant to a residential lease with his wife, he tripped and fell on a tree branch that had recently been lopped from a tree by the first defendant at the request of the owners of 10 Shadforth Street. The tree was growing in 12 Shadforth Street, but the branches had extended over the top of the premises next door at number 10.

2. The plaintiff contends that, as a result of that incident, he suffered serious back injuries from which he claims to suffer continuing significant disability.

3. The plaintiff seeks damages pursuant to the Civil Liability Act2002 against the first defendant, who at the relevant time, was a builder, and who had been engaged by the owners of 10 Shadforth Street to do some work on their property. The work included work to remove all the bushes and trees overhanging the front of 10 Shadforth Street.

4. There is no issue that the first defendant, whilst doing that task, lopped branches off at least one tree growing at number 12, because the branches were overhanging in number 10, and then deposited them into the plaintiff’s backyard, so they could be ultimately taken away in a truck via a driveway on the other adjoining property (number 14) after removal of part of the fence between numbers 12 and 14.

5. The…