LOWER COURT FILE NUMBER(S): DC 13160/01, DC 819/04
LOWER COURT JUDICIAL OFFICER: Truss DCJ
COUNSEL: Booksan Pty Ltd, Jaymay Constructions Pty Ltd: M Einfeld QC/D Brogan GIO General Ltd: D Nock SC/R Beasley GIO Workers Compensation (NSW) Ltd: J M. McIntyre SC/J L Sharpe Bilal Wehbe: J P Gormly SC/D Kelly Salah Eldin Elmir: L King SC/M Daley
SOLICITORS: Booksan Pty Ltd, Jaymay Constructions Pty Ltd: J P Gould GIO General Ltd: Phillips Fox GIO Workers Compensation (NSW) Ltd: Thompson Cooper Lawyers Bilal Wehbe: Turner Freeman Salah Eldin Elmir: P D Banister
CATCHWORDS: NEGLIGENCE - liability of occupier of private land - liability of employer - whether duty of care was breached - discussion of factors relevant to duty or to breach - whether defendants breached various statutory duties under the Construction Safety Regulations 1950 (NSW) - contributory negligence - availability of contributory negligence as a defence for a claim based on a breach of statutory duty - the extent to which Part 1A of the Civil Liability Act 2002 (NSW) is retrospective - s 5A of the Civil Liability Act 2002 (NSW) INSURANCE - standing of an insurer on appeal to argue issues between a plaintiff and an insured defendant that could result in the insurer being liable to provide an indemnity - whether insureds breached conditions of the insurance policies STATUTES - effect of s 22 of the Occupational Health and Safety Act 1983 (NSW) on the application of Division 1 of that Act to civil claims. D
LEGISLATION CITED: Civil Liability Act 2002 (NSW) Pt 1A, cl 6 of Pt 3 of Sch…
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.
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AGLC
Booksan Pty Ltd v Wehbe [2006] NSWCA 3
Case
[2006] NSWCA 3
Decision Date
CaseChat Overview and Summary
This case concerned appeals arising from a negligence claim brought by the plaintiffs, Booksan Pty Ltd and others, against the defendants, Wehbe and Jaymay. The dispute centred on whether the defendants owed and breached a duty of care to the plaintiffs, particularly in relation to statutory duties under the Construction Safety Regulations 1950 (NSW) and the Occupational Health and Safety Act 1983 (NSW). The appeals also involved issues of contributory negligence and an insurer's standing to appeal on matters affecting its indemnity obligations.
The primary legal issues before the court were whether the defendants had breached their duty of care, whether the plaintiffs were guilty of contributory negligence, and the extent to which the Civil Liability Act 2002 (NSW) applied retrospectively. Additionally, the court considered whether an insurer, GIO General, had standing to appeal issues between its insured, Jaymay, and the plaintiffs, and whether Jaymay had breached conditions of its insurance policies with GIO General. The applicability of s 22 of the Occupational Health and Safety Act 1983 (NSW) to civil claims was also a point of contention.
The court reasoned that the primary judge had correctly found that Booksan Pty Ltd had not breached its duty of care under clause 13 of the relevant policy. However, the court upheld the defendants' appeals regarding contributory negligence, finding that each plaintiff was contributorily negligent to the extent of 15 per cent. Furthermore, Jaymay's appeal concerning its entitlement to an indemnity from GIO General was upheld, with the court finding GIO General liable to indemnify Jaymay. All other appeals and cross-appeals were dismissed.
Orders
Orders of the court
(1) The defendants' appeals against the finding that the plaintiffs were not guilty of contributory negligence are upheld. The damages awarded to each plaintiff should be subject to an apportionment of 15 per cent (2) Jaymay's appeal against the decision that it is not entitled to an indemnity from GIO General is upheld. GIO General is liable to indemnify Jaymay (3) All other appeals and cross-appeals are dismissed (4) The defendants are to file written submissions in regard to costs within 21 days of the delivery of this judgment and all other parties are to file their written submissions in reply within 21 days thereafter.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
For the reasons previously expressed, I consider that her Honour correctly held that Booksan did not breach cl 13. Thus, I consider that she was correct in her findings as to Booksan’s entitlement. Mr McIntyre accepted that, if Booksan is not to be held responsible for Patrick Sahyoun’s actions, GIOWC had not established that Booksan failed to take reasonable precautions to prevent injury and cl 13 of the GIOWC Policy did not have application. Accordingly, I would dismiss GIOWC’s appeal in this regard.Conclusion I would uphold the defendants’ appeals against the decision that the plaintiffs were not guilty of contributory negligence. I would hold that each plaintiff was contributorily negligent and that the damages of each should be subject to an apportionment of 15 per cent. I would uphold Jaymay’s appeal against the decision that it is not entitled to an indemnity from GIO General. I would hold that GIO General is liable to indemnify Jaymay. I would dismiss all other appeals and cross-appeals. The parties requested that no decision be made in regard to costs until after the questions of liability have been decided. I would require the defendants to file written submissions in this regard within 21 days of the delivery of this judgment and all other parties to file their written submissions in reply within 21 days thereafter. TOBIAS JA: I agree with Justice Ipp.