Booksan Pty Ltd v Wehbe

Case [2006] NSWCA 3


NEW SOUTH WALES COURT OF APPEAL

CITATION:      Booksan Pty Ltd, Jaymay Constructions Pty Ltd v Wehbe, Elmir & Others; GIO General Ltd and & GIO Workers Compensation (NSW) Ltd v Wehbe, Elmir & Others. [2006]  NSWCA 3

FILE NUMBER(S):
40308/05
40118/05
41031/04
41032/04
41046/04
41047/04

HEARING DATE(S):               05/12/05, 06/12/05, 07/12/05

DECISION DATE:     21/02/2006

PARTIES:
CA 40308/05
Booksan Pty Ltd, Jaymay Constructions Pty Ltd (Appellants)
Bilal Wehbe (First Respondent)
GIO General Ltd (Second Respondent)
GIO Workers Compensation (NSW) Ltd (Third Respondent)
CA 40118/05
Booksan Pty Ltd, Jaymay Constructions Pty Ltd (Appellants)
Salah Eldin Elmir (First Respondent)
GIO General Ltd (Second Respondent)
GIO Workers Compensation (NSW) Ltd (Third Respondent)
CA 41031/04
GIO General Ltd (Appellant)
Booksan Pty Ltd (First Respondent)
Jaymay Constructions Pty Ltd (Second Respondent)
GIO Workers Compensation (NSW) Ltd (Third Respondent)
Bilal Wehbe (Fourth Respondent)
CA 41032/04
GIO General Ltd (Appellant)
Booksan Pty Ltd (First Respondent)
Jaymay Constructions Pty Ltd (Second Respondent)
GIO Workers Compensation (NSW) Ltd (Third Respondent)
Salah Eldin Elmir (Fourth Respondent)
CA 41046/04
GIO Workers Compensation (NSW) Ltd (Appellant)
Bilal Wehbe (First Respondent)
Jaymay Constructions Pty Ltd (Second Respondent)
Booksan Pty Ltd (Third Respondent)
GIO General Ltd (Fourth Respondent)
CA 41047/04
GIO Workers Compensation (NSW) Ltd (Appellant)
Salah Eldin Elmir (First Respondent)
Jaymay Constructions Pty Ltd (Second Respondent)
Booksan Pty Ltd (Third Respondent)
GIO General Ltd (Fourth Respondent)

JUDGMENT OF:       Giles JA Ipp JA Tobias JA   

LOWER COURT JURISDICTION: District Court

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…

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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

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Evidence

Evidence Before The Court

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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.

Ratio Decidendi

Legal Principle Established

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