Dawmac Industries P/L v Anson - [2001] NSWCA 42

CITATION: Dawmac Industries P/L v Anson [2001] NSWCA 42

FILE NUMBER(S): CA 40749/99

HEARING DATE(S): 23/02/01

JUDGMENT DATE:
14 March 2001

PARTIES :

Dawmac Industries Pty Limited
v
Bernice Anson & Polkinghorne Russell Pty Limited

JUDGMENT OF: Meagher JA at 1; Ipp AJA at 17; Rolfe AJA at 18

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 2789/98

LOWER COURT
JUDICIAL OFFICER : Garling DCJ

COUNSEL: Philip John Lederman (Appellant)
Andrew Grech (1st Respondent)
John Taylor (2nd Respondent

SOLICITORS: Appellant: Henry Davis York Lawyers
1st Respondent: Slater & Gordon
2nd Respondent: Taylor & Whitty Solicitors

CATCHWORDS: Negligence - injury to pedestrian on footpath outside construdtion site - independent contractor at fault - construction site owner and pedestrian - non-delegable duty of care.

CASES CITED:
Bowen v Peate (1876) 1 QBD 321 at 326
Northern Sandblasting Pty Limited v Harris (1996) 188 CLR 313 at 366ff
Stoneman v Lyons (1975) 133 CLR 550
Jones v Bartlett (2000) 75 ALJR 1

DECISION: 1) Appeal by the appellant against the first respondent allowed.; 2) Orders below set aside.; 3) The first respondent pay the appellant’s costs of the appeal, save for the costs payable by the appellant to the second respondent, and have a certificate under the Suitors Fund Act if otherwise entitled.; 4) Appeal by the appellant against the second respondent dismissed.; 5) Appellant pay the second respondent’s costs of the appeal.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40749/99

Meagher JA

14 March 2001

DAWMAC INDUSTRIES PTY LIMITED V Bernice ANSON & POLKINGHORNE & RUSSELL PTY LIMITED

The Plaintiff, a pedestrian, sued the Defendant, the owner of a shop being repaired, for damages arising out of her falling into a hole which his subcontractors had made. It was not alleged that the Defendant was personally at fault.

Held:

The Defendant could not be made liable for a breach of a non-delegable duty of care.

Orders:

1) Appeal by the appellant against the first respondent allowed.

2) Orders below set aside.

Catchwords

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA: 40749/99

MEAGHER JA

IPP AJA

ROLFE AJA

14 MARCH 2001

DAWMAC INDUSTRIES PTY LIMITED v Bernice ANSON & POLKINGHORNE & RUSSELL PTY LIMITED

JUDGMENT

1 MEAGHER JA: This is an appeal from a judgment and verdict which Garling DCJ gave in favour of an injured plaintiff, Mrs Bernice Anson, the first respondent to this appeal.

2 The evidence, about which there was no challenge, was that on 29 April 1995 she and a friend Mrs Nock walked along a footpath outside a construction site in Chantal Street, Berrigan, which is a township in the State of…

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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Details

Case: [2001] NSWCA 42
Decision Date: 14 March 2001

CaseChat Overview and Summary

Dawmac Industries Pty Ltd (the appellant) appealed to the Supreme Court of New South Wales against the first respondent, Anson, and the second respondent. The dispute concerned the appellant's entitlement to recover certain costs.

The primary legal issues before the Court were whether the appellant was entitled to recover costs from the first respondent, and whether the appellant was liable for the costs of the second respondent.

The Court allowed the appeal against the first respondent, setting aside the orders made below. Consequently, the first respondent was ordered to pay the appellant’s costs of the appeal, with a provision for a certificate under the Suitors Fund Act if otherwise entitled. However, the appeal against the second respondent was dismissed, and the appellant was ordered to pay the second respondent’s costs of the appeal.

Orders

Orders of the court

1) Appeal by the appellant against the first respondent allowed.; 2) Orders below set aside.; 3) The first respondent pay the appellant’s costs of the appeal, save for the costs payable by the appellant to the second respondent, and have a certificate under the Suitors Fund Act if otherwise entitled.; 4) Appeal by the appellant against the second respondent dismissed.; 5) Appellant pay the second respondent’s costs of the appeal.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dawmac Industries P/L v Anson [2001] NSWCA 42
FILE NUMBER(S):	CA 40749/99
HEARING DATE(S):	23/02/01
JUDGMENT DATE:	14 March 2001
PARTIES :	Dawmac Industries Pty Limited v Bernice Anson & Polkinghorne Russell Pty Limited
JUDGMENT OF:	Meagher JA at 1; Ipp AJA at 17; Rolfe AJA at 18

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	2789/98
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

COUNSEL:	Philip John Lederman (Appellant) Andrew Grech (1st Respondent) John Taylor (2nd Respondent
SOLICITORS:	Appellant: Henry Davis York Lawyers 1st Respondent: Slater & Gordon 2nd Respondent: Taylor & Whitty Solicitors
CATCHWORDS:	Negligence - injury to pedestrian on footpath outside construdtion site - independent contractor at fault - construction site owner and pedestrian - non-delegable duty of care.
CASES CITED:	Bowen v Peate (1876) 1 QBD 321 at 326 Northern Sandblasting Pty Limited v Harris (1996) 188 CLR 313 at 366ff Stoneman v Lyons (1975) 133 CLR 550 Jones v Bartlett (2000) 75 ALJR 1
DECISION:	1) Appeal by the appellant against the first respondent allowed.; 2) Orders below set aside.; 3) The first respondent pay the appellant’s costs of the appeal, save for the costs payable by the appellant to the second respondent, and have a certificate under the Suitors Fund Act if otherwise entitled.; 4) Appeal by the appellant against the second respondent dismissed.; 5) Appellant pay the second respondent’s costs of the appeal.