Booksan Pty Ltd v Wehbe

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.