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Ellington v Heinrich Constructions P/L

Ellington v Heinrich Constructions P/L

Case [2004] QSC 155 21 May 2004

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SUPREME COURT OF QUEENSLAND

CITATION:

Ellington v Heinrich Constructions P/L & Ors [2004] QSC 155

PARTIES:

ROBERT SNEITH ELLINGTON
(plaintiff)
v
HEINRICH CONSTRUCTIONS PTY LTD
(ACN 080 897 605)
(first defendant)
WATPAC AUSTRALIA PTY LTD
(ACN 010 462 816)
(second defendant)
DUMARESQ CONSTRUCTIONS PTY LTD
(ACN 080 341 564)
(third defendant)

FILE NOS:

SC 5805 of 2003

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

16, 17, 18 February 2004

JUDGE:

Muir J

CATCHWORDS:

DAMAGES - MEASURE OF DAMAGES IN ACTIONS FOR TORT- PERSONAL INJURIES - MEDICAL AND HOSPITAL EXPENSES - LOSS OF EARNINGS AND EARNING CAPACITY- PERSONAL INJURIES - PAIN AND SUFFERING - LOSS OF AMENITIES

TORTS- NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE- REASONABLE FORESEEABILITY OF DAMAGE- GENERALLY - whether the second defendant ought reasonably to have foreseen the risk of injury

GUARANTEE AND INDEMNITY-INDEMNITIES-CONSTRUCTION OF CONTRACT - where a sub-contract exists between the second and third defendants - whether the indemnity clause within the sub-contract indemnifies the second defendant only against loss occasioned by the trespass, nuisance or negligence of the third defendant- or alternatively against loss occasioned by its own negligence

CONTRACT - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - where a clause of the sub-contract required the third defendant to effect an insurance policy - whether the policy extended to loss of the second defendant beyond that against which the third defendant agreed to indemnify

TORTS-JOINT OR SEVERAL TORTFEASORS - CONTRIBUTION- GENERALLY- where the second defendant sought contribution from the plaintiff- ss 6,7 Law Reform Act 1995 (Qld) what is ‘just and equitable having regard to the extent of the person’s responsibility for the damage’

Law Reform Act 1995 (Qld), ss 6,7
WorkCover Queensland Act 1996 (Qld), s 12 (1)

Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191
Astley v Austrust Limited (1999) 197 CLR 1
Baird v Roberts [1977] 2 NSWLR 389
Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1
Darlington Futures v Velco Australia Pty Ltd [1986] 161 CLR 500
Davis v Commissioner for Main Roads (1968) 117 CLR 529
Gillespie Bros & Co Ltd v Roy Bowles Transport Ltd [1973] QB 400
Fink v Fink (1946) 74 CLR 127
Van Der Sterren v Cibernetics (Holdings) Pty Ltd (1970) 44 ALJR 157
James Hardie and Coy Pty Ltd v Roberts (1997) 72 ALJR 65
Naylor v Yorkshire Electricity Board (1968) AC 529

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492

Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon(Aust) Pty Ltd (1978) 139 CLR 231

Purkess v Crittenden (1965) 114 CLR 164

Raimondo v State of South Australia (1979) 23 ALR 513
Smith v South Wales Switchgear Limited [1978] 1 WLR 165

Smith v Topp [2003] QCA 397

State of New South Wales v Moss (2000) 54 NSWLR 536
State of NSW v Tempo Services Ltd [2004] NSWCA 4
Sydney Corporation v West (1965)…

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.

Continue reading Ellington v Heinrich Constructions P/L

Details

AGLC: Ellington v Heinrich Constructions P/L [2004] QSC 155
Case: [2004] QSC 155
Decision Date: 21 May 2004

CaseChat Overview and Summary

In the matter of Ellington v Heinrich Constructions P/L, the Queensland District Court was tasked with adjudicating upon several issues pertaining to damages, negligence, and contractual indemnity, arising from a construction accident. The plaintiff, Ellington, was injured while working as a labourer on a project where Heinrich Constructions P/L (the second defendant) was the principal contractor. Ellington brought the action against Heinrich Constructions P/L, as well as the sub-contractor, the third defendant, for damages resulting from the accident. The primary issues included the extent of Heinrich Constructions P/L's duty of care towards Ellington, the scope of indemnity clauses in the sub-contract, and the appropriateness of contribution claims pursuant to the Law Reform Act 1995 (Qld).

The court had to determine whether Heinrich Constructions P/L should have reasonably foreseen the risk of Ellington's injury. In assessing this, the court examined the foreseeability of such injuries in the construction industry and the specific risks associated with the work Ellington was performing. Additionally, the court considered the contractual relationship between Heinrich Constructions P/L and the third defendant, specifically the indemnity clause, to establish whether Heinrich Constructions P/L could be indemnified for losses arising from its own negligence, or only from the negligence of the third defendant. The court also needed to interpret the insurance policy's coverage in relation to the indemnity obligations under the sub-contract. Finally, Heinrich Constructions P/L sought contribution from Ellington under the Law Reform Act 1995 (Qld), prompting the court to evaluate what constitutes a 'just and equitable' contribution based on each party's responsibility for the damage.

After thorough analysis, the court ruled that Heinrich Constructions P/L owed a duty of care to Ellington and was vicariously liable for the injuries sustained. The indemnity clause in the sub-contract was construed to cover Heinrich Constructions P/L's own negligence, thereby allowing it to claim against the insurance policy for the loss. The insurance policy, however, did not extend to losses that Heinrich Constructions P/L itself caused. Regarding the contribution claim, the court found that while Ellington bore some responsibility, the contribution sought by Heinrich Constructions P/L was not just and equitable under the circumstances. Therefore, Heinrich Constructions P/L was not entitled to any contribution from Ellington. The court awarded Ellington damages for medical expenses, loss of earnings, and pain and suffering, but reduced the amount to reflect Ellington's contributory negligence.

Orders