20-23 May 2024; 14-16 October 2024; 6-8 November 2024; 27-28 November 2024; 13 March 2025 (oral submissions)
Date of orders:
11 April 2025
Decision date:
11 April 2025
Jurisdiction:
Civil
Before:
Dicker SC DCJ at Albury (20-23 May 2023) and Sydney (14-16 October 2024; 6-8 November 2024; 27-28 November 2024); 16 December 2024 (plaintiff’s written submissions in chief); 17 January 2025 (defendant’s written submissions); 10 February 2025 (cross-defendant’s written submissions); 28 February 2025 (plaintiff’s reply submissions)
Decision:
1. Judgment for the plaintiff against the defendant.
2. Judgment for the defendant against the cross-defendant on the Cross-Claim.
3. The cross-defendant is to indemnify the defendant in relation to any liability to the plaintiff.
4. The parties are to forward to the Associate to Dicker DCJ orders consistent with these reasons within seven days.
5. The defendant is to pay the plaintiff’s costs of the Statement of Claim proceedings as agreed or assessed.
6. The cross-defendant is to pay the defendant’s costs of the Cross-Claim proceedings as agreed or assessed.
7. Liberty to the parties to apply within seven days for different costs orders to those set out above.
Catchwords:
TORTS – negligence – fall of six years old plaintiff from three metres high diving board platform onto surrounding concrete – precise circumstances of fall – whether preventative measures should reasonably have been taken by defendant and/or cross-defendant – cause of fall – reliability of witnesses – precise injury caused – extent of disabilities due to accident - appropriate damages to be awarded – legal status of persons contracting to manage pool with the cross-defendant
LIMITATION OF ACTIONS – torts – negligence – personal injury – discoverability - tutor initially acting for plaintiff
EMPLOYEE – whether person was an employee or independent contractor and consequences of status
LEASE – construction of lease – applicable contractual principles - whether indemnity and insuring obligation placed on cross-defendant by lease
[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
AGLC
Delaney v Federation Council [2025] NSWDC 141
Case
[2025] NSWDC 141
Decision Date
CaseChat Overview and Summary
The case of Delaney v Federation Council involved a six-year-old plaintiff who suffered injuries from a fall from a three-metre high diving board platform onto concrete. The plaintiff sought damages against the defendant, the Federation Council, for the alleged negligence of the Council. The Council cross-claimed against the cross-defendant, who was responsible for managing the pool, seeking indemnity and asserting that the plaintiff's injuries were due to the negligence of the cross-defendant. The court was required to determine the precise circumstances leading to the fall, the adequacy of preventative measures, the extent of the plaintiff's injuries and resulting disabilities, and the appropriate amount of damages to be awarded.
The court examined the cause of the fall and the reliability of the witnesses' accounts. It also assessed whether preventative measures should have been taken by the defendant or the cross-defendant, and if so, what those measures should have been. The court needed to consider the extent of the disabilities due to the accident and the appropriate amount of damages. Additionally, the court had to determine the legal status of the cross-defendant as either an employee or an independent contractor, which would affect the distribution of liability. The court also examined the lease between the defendant and the cross-defendant to ascertain whether it imposed an indemnity and insuring obligation on the cross-defendant.
The court found that the defendant, the Federation Council, was liable for the plaintiff's injuries due to negligence in not providing adequate safety measures. The court concluded that the cross-defendant, responsible for managing the pool, was not an employee but an independent contractor, and therefore not entitled to indemnity from the defendant. The court awarded damages to the plaintiff and ordered the defendant to pay the plaintiff's costs. The defendant was further ordered to be indemnified by the cross-defendant for any liability to the plaintiff. The court directed the parties to submit orders consistent with these reasons within seven days and allowed the parties to apply for different costs orders if necessary.
Orders
Orders of the court
1. Judgment for the plaintiff against the defendant.
2. Judgment for the defendant against the cross-defendant on the Cross-Claim.
3. The cross-defendant is to indemnify the defendant in relation to any liability to the plaintiff.
4. The parties are to forward to the Associate to Dicker DCJ orders consistent with these reasons within seven days.
5. The defendant is to pay the plaintiff’s costs of the Statement of Claim proceedings as agreed or assessed.
6. The cross-defendant is to pay the defendant’s costs of the Cross-Claim proceedings as agreed or assessed.
7. Liberty to the parties to apply within seven days for different costs orders to those set out above.