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F & D Normoyle Pty Ltd v Transfield Pty Ltd

F & D Normoyle Pty Ltd v Transfield Pty Ltd

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Case Copied 23 August 2005 68 min read

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Reported Decision:
63 NSWLR 502

Court of Appeal

CITATION:
F & D Normoyle Pty Ltd v Transfield Pty Ltd t/as Transfield Bouygues Joint Venture & 1 Or; Transfield Pty Ltd t/as Transfield Bouygues Joint Venture & 1 Or v Z Vranjkovic & 2 Ors [2005] NSWCA 193

HEARING DATE(S):
08/06/05

JUDGMENT DATE:

23 August 2005

JUDGMENT OF:
Ipp JA at 1; McColl JA at 130; Bryson JA at 131

DECISION:
(1) The Joint Venture's appeal against Mr Vranjkovic be dismissed with costs (2) The Joint Venture's appeal against Chadwick be dismissed with costs (3) Normoyle's appeal against the Joint Venture be upheld with costs (4) The judgment of the District Court in favour of the Joint Venture against Normoyle be set aside and, in lieu thereof, there be judgment in favour of Normoyle with costs.

CATCHWORDS:
STATUTORY DUTIES - breach of duty under reg 73 of the Construction Safety Act 1912 (NSW) - meaning of "carries out any construction work" - meaning of "access" - meaning of "passageway" - whether contributory negligence is an available defence - NEGLIGENCE - breach of duty of care - reasonableness of the existing safety system - CONTRACTS - indemnity clauses - ambiguity - the principle in Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 applies - an indemnity clause, when ambiguous, is usually to be construed in favour of the person providing the indemnity - meaning of "any act, neglect or default" - meaning of "as a result of" - DAMAGES - assessment by trial judge - adequate reasons to be given by trial judge - standards laid down in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 and Hume v Watson [2005] NSWCA 148 must be complied with. D

LEGISLATION CITED:
Civil Liability Act 2002 (NSW), Sch 1, Pt 3, cl 6
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), Sch 2, cl 14, Sch 3
Construction Safety Act 1912 (NSW), regs 73(2), 73(5)
Interpretation Act 1987 (NSW), ss 30(1)(c), 30(1)(e)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 7
Statutory Duties (Contributory Negligence) Act 1945 (NSW), s 2(1)
Workers Compensation Act 1987 (NSW), ss 151E(1), 151N(3)

CASES CITED:
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Ankar Pty Limited v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
Davis v The Commissioner of Main Roads (1988) 117 CLR 529
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
Gillespie Bros & Co Ltd v Roy Bowles Transport Ltd [1973] 1 QB 400
Hume v Walton [2005] NSWCA 148
Leighton Contractors Pty Ltd v Smith [2000] NSWCA 55
Multiplex Constructions Pty Ltd v Irving [2004] NSWCA 346
Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd…

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: [2005] NSWCA 193
Decision Date: 23 August 2005

CaseChat Overview and Summary

The case of *F & D Normoyle Pty Ltd v Transfield Pty Ltd* involved an appeal to the New South Wales Court of Appeal concerning a dispute arising from construction work. The primary parties were F & D Normoyle Pty Ltd (Normoyle) and Transfield Pty Ltd (referred to as the Joint Venture in the orders). The dispute concerned liability for injuries sustained by workers during construction activities.

The Court of Appeal was required to determine several key legal issues. These included whether a breach of statutory duty had occurred under regulation 73 of the *Construction Safety Act 1912* (NSW), specifically concerning the meaning of "carries out any construction work," "access," and "passageway." The court also considered whether contributory negligence was a available defence in this context. Furthermore, the court examined issues of negligence, including the reasonableness of an existing safety system, and the interpretation of indemnity clauses in contracts, applying the principle from *Andar Transport Pty Ltd v Brambles Ltd* that ambiguous indemnity clauses are generally construed in favour of the indemnifying party. The meaning of "any act, neglect or default" and "as a result of" within the indemnity clause was also central. Finally, the court reviewed the assessment of damages by the trial judge, considering the standards for adequate reasons laid down in cases such as *Soulemezis v Dudley (Holdings) Pty Ltd*.

The Court of Appeal's reasoning led to significant alterations of the trial court's judgment. The court upheld Normoyle's appeal against the Joint Venture, setting aside the District Court's judgment in favour of the Joint Venture and entering judgment for Normoyle instead. The appeals by the Joint Venture against two individuals, Mr Vranjkovic and Chadwick, were dismissed. Consequently, the Joint Venture was ordered to pay Normoyle's costs, and Normoyle was ordered to pay the costs of the Joint Venture in relation to its unsuccessful appeals against Mr Vranjkovic and Chadwick.

Orders

Orders of the court

(1) The Joint Venture's appeal against Mr Vranjkovic be dismissed with costs (2) The Joint Venture's appeal against Chadwick be dismissed with costs (3) Normoyle's appeal against the Joint Venture be upheld with costs (4) The judgment of the District Court in favour of the Joint Venture against Normoyle be set aside and, in lieu thereof, there be judgment in favour of Normoyle with costs.

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:	F & D Normoyle Pty Ltd v Transfield Pty Ltd t/as Transfield Bouygues Joint Venture & 1 Or; Transfield Pty Ltd t/as Transfield Bouygues Joint Venture & 1 Or v Z Vranjkovic & 2 Ors [2005] NSWCA 193
HEARING DATE(S):	08/06/05
JUDGMENT DATE:	23 August 2005
JUDGMENT OF:	Ipp JA at 1; McColl JA at 130; Bryson JA at 131
DECISION:	(1) The Joint Venture's appeal against Mr Vranjkovic be dismissed with costs (2) The Joint Venture's appeal against Chadwick be dismissed with costs (3) Normoyle's appeal against the Joint Venture be upheld with costs (4) The judgment of the District Court in favour of the Joint Venture against Normoyle be set aside and, in lieu thereof, there be judgment in favour of Normoyle with costs.

CATCHWORDS:	STATUTORY DUTIES - breach of duty under reg 73 of the Construction Safety Act 1912 (NSW) - meaning of "carries out any construction work" - meaning of "access" - meaning of "passageway" - whether contributory negligence is an available defence - NEGLIGENCE - breach of duty of care - reasonableness of the existing safety system - CONTRACTS - indemnity clauses - ambiguity - the principle in Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 applies - an indemnity clause, when ambiguous, is usually to be construed in favour of the person providing the indemnity - meaning of "any act, neglect or default" - meaning of "as a result of" - DAMAGES - assessment by trial judge - adequate reasons to be given by trial judge - standards laid down in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 and Hume v Watson [2005] NSWCA 148 must be complied with. D
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), Sch 1, Pt 3, cl 6 Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), Sch 2, cl 14, Sch 3 Construction Safety Act 1912 (NSW), regs 73(2), 73(5) Interpretation Act 1987 (NSW), ss 30(1)(c), 30(1)(e) Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 7 Statutory Duties (Contributory Negligence) Act 1945 (NSW), s 2(1) Workers Compensation Act 1987 (NSW), ss 151E(1), 151N(3)
CASES CITED:	Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 Ankar Pty Limited v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1 Chan v Cresdon Pty Ltd (1989) 168 CLR 242 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 Davis v The Commissioner of Main Roads (1988) 117 CLR 529 Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 Gillespie Bros & Co Ltd v Roy Bowles Transport Ltd [1973] 1 QB 400 Hume v Walton [2005] NSWCA 148 Leighton Contractors Pty Ltd v Smith [2000] NSWCA 55 Multiplex Constructions Pty Ltd v Irving [2004] NSWCA 346 Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd…