DI VINCENZO -v- McKRILL & ANOR [2005] WASCA 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 222 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:63/2003 | 15 SEPTEMBER 2005 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA MILLER AJA | 22/11/05 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
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Details
- Case
- [2005] WASCA 222
- Decision Date
CaseChat Overview and Summary
In the case of Di Vincenzo v McKrill, the appellant, Di Vincenzo, sought to appeal against the liability and damages awarded to the first respondent, McKrill. The dispute arose from an incident where McKrill was injured while working on a building site that was being constructed under the supervision of the first defendant, a builder. Di Vincenzo held an owner-builder’s licence and was engaged in the construction of the house. The primary legal issue before the court was whether Di Vincenzo was an occupier within the meaning of the Occupiers' Liability Act 1985, and if so, whether he owed a duty of care to McKrill. Another question was whether this duty was non-delegable, and if McKrill was contributory negligent for not taking care for his own safety. Finally, the court had to assess the reasonableness of the damages awarded to McKrill for past loss of earning capacity.
The court examined the nature of Di Vincenzo’s involvement in the construction and concluded that he was indeed an occupier under the Act. Given that the first defendant was a builder engaged to supervise the construction, the court found that the builder was the occupier in the circumstances. This meant that the builder was responsible for the safety of persons on the site. The court further held that the duty of care was not non-delegable, as the builder, as the occupier, could delegate responsibility for safety to a competent supervisor. Regarding contributory negligence, the court determined that McKrill had failed to take reasonable care for his own safety, which contributed to his injuries. The court also found that the assessment of damages for past loss of earning capacity was reasonable, and the amount awarded was not excessive.
Ultimately, the appeal was dismissed. The findings of the court confirmed that the builder, not Di Vincenzo, was the occupier, and that McKrill’s contributory negligence reduced the liability of the parties involved. The damages awarded were deemed appropriate given the circumstances of the case.
The court examined the nature of Di Vincenzo’s involvement in the construction and concluded that he was indeed an occupier under the Act. Given that the first defendant was a builder engaged to supervise the construction, the court found that the builder was the occupier in the circumstances. This meant that the builder was responsible for the safety of persons on the site. The court further held that the duty of care was not non-delegable, as the builder, as the occupier, could delegate responsibility for safety to a competent supervisor. Regarding contributory negligence, the court determined that McKrill had failed to take reasonable care for his own safety, which contributed to his injuries. The court also found that the assessment of damages for past loss of earning capacity was reasonable, and the amount awarded was not excessive.
Ultimately, the appeal was dismissed. The findings of the court confirmed that the builder, not Di Vincenzo, was the occupier, and that McKrill’s contributory negligence reduced the liability of the parties involved. The damages awarded were deemed appropriate given the circumstances of the case.
Orders
Orders of the court
Appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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