Dettmer v K J McCracken Pty Ltd

CITATION:	Dettmer v K J McCracken Pty Ltd & Anor [2002] NSWCA 199
FILE NUMBER(S):	CA 40353/01
HEARING DATE(S):	11 June 2002
JUDGMENT DATE:	28 June 2002
PARTIES :	Douglas Ronald Dettmer (Appellant/Cross-Respondent) K J McCracken (First Respondent) State of New South Wales (Second Respondent/Cross-Appellant)
JUDGMENT OF:	Meagher JA at 1; Stein JA at 2; Campbell AJA at 56

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7794/98
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

COUNSEL:	P E Blacket SC/P Nolan (Appellant/Cross-Respondnet) No appearance for First Respondent J J Graves SC/T H Barrett (Second Respondent/Cross-Appellant)
SOLICITORS:	Schrader & Associates (Appellant/Cross-Respondent) I V Knight Crown Solicitor (Second Respondent/Cross-Appellant)
CATCHWORDS:	TORT - negligence - subcontractor commissioned to carry out maintenance work - fell from an awning - whether contractor owed a special duty of care to subcontractor - whether contractor had a duty to warn subcontractor of risks - liability of occupier - ND
LEGISLATION CITED:	n/a
CASES CITED:	Kondis v State Transport Authority (1983 - 1984) 156 CLR 672 McArdle v Andmac Roofing Co [1967] 1 WLR 356 Stevens v Brodribb Sawmilling Co Pty Limited (1985 - 1986) 160 CLR 16
DECISION:	Appeal dismissed with costs

CA 40353/01
DC 7794/98

MEAGHER JA
STEIN JA
CAMPBELL AJA

Friday, 28 June 2002

Douglas Ronald DETTMER v K J McCRACKEN PTY LIMITED and Anor

Facts

The appellant, Mr Dettmer, was a sub-contractor to the first respondent, K J McCracken (McCracken), which in turn was performing building and maintenance works for the second respondent, The State of New South Wales. The sub-contract works included the removal and replacement of a number of damaged awnings at Merrylands High School. In the course of carrying out the building works, the appellant fell from one of the awnings and injured himself.

The appellant sued the first and second respondents in negligence for damages for the injuries he suffered. The State was sued in two capacities as occupier of the school site, through the Department of Education and also the Department of Public Works, which let and supervised the head contract with McCracken.

At the trial the appellant argued that McCracken owed him a duty of care notwithstanding that he was a subcontractor of McCracken. However, Judge Ainslie-Wallace found that the evidence fell far short of establishing the required elements of control as indicated in Stevens v Brodribb Sawmilling Co Pty Limited (1985 – 1986) 160 CLR 16. Her Honour also found that no special relationship between the parties, such as would lead McCracken to owe a non-delegable duty of care to the appellant, was established. Further, the trial judge rejected the submission that McCracken ought to have known that the awning was unsafe and had a duty to warn the appellant.

On the issue of liability of the second respondent, as occupier of the site, her Honour found that it was a reasonable inference on the evidence that the second respondent ought to have known of the defective state of the awning. However,…