Appeal Outcome: Special leave application granted by the High Court – 17 November 2008
New South Wales
Court of Appeal
CITATION: FOX v LEIGHTON CONTRACTORS PTY LTD & ORS [2008] NSWCA 23 HEARING DATE(S): 7 December 2007
JUDGMENT DATE:
7 March 2008JUDGMENT OF: Giles JA at 1; McColl JA at 1; Basten JA at 9 DECISION: (1) (a) Allow the appeal and set aside order 2 of the trial judge dated 14 December 2006 dismissing the claims made by the plaintiff, Brian Allan Fox, against the first defendant, Leighton Contractors Pty Ltd and the third defendant, Downview Pty Ltd;
(b) in lieu thereof, give judgment for the plaintiff against the first and third defendants in the amount of $472,562.(2) (a) Set aside order 5 below in relation to the costs of the first and third defendants;
(b) order that the first and third defendants pay the plaintiff’s costs of the trial.(3) Order that the first and third respondents pay the appellant’s costs of the appeal.
(4) Dismiss the appeal with respect to the second respondent with no order as to costs.
(5) On the cross-appeal: (a) set aside orders 4 and 6 below dismissing the cross-claim and awarding costs in respect thereof;
(6) Grant a Suitors’ Fund certificate to: (a) the first and third respondents in respect of the costs of the appeal;
(b) order that Downview Pty Ltd pay 80% of the judgment debt incurred by Leighton Contractors Pty Ltd to Brian Allan Fox, and
(c) order that Downview Pty Ltd pay Leighton Contractors Pty Ltd’s costs of the cross-appeal.
(b) Downview Pty Ltd in respect of the cross-appeal unless disqualified pursuant to s 6(7) of the Suitors’ Fund Act 1951 (NSW).
CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY – obligation to provide safety induction training – Occupational Health and Safety Act 2000 (NSW) s 39A – Occupational Health and Safety Regulation 2001 (NSW) reg 213 - TORTS – negligence – duty of care of principal contractor to subcontractors – building and construction work – duty of principal contractor to maintain safe workplace – duty to take reasonable care to ensure safety of subcontractor – whether non-delegable duty – failure to ensure subcontractor underwent safety induction training – extent of direct supervision of sub-contractors - TORTS – negligence – contributory negligence – obligation of plaintiff to take reasonable steps for own safety - TORTS – negligence – contribution between joint tortfeasors LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Occupational Health and Safety Act 2000 (NSW), ss 32, 39A, 46
Occupational Health and Safety Regulation 2001 (NSW), regs 213, 215, 217CATEGORY: Principal judgment CASES CITED: Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Cooperative Assurance Co of Australia Ltd (1931) 46 CLR 41
Ghunaim v Bart [2004] NSWCA 28 (at [44]); (2004) Aust Torts Reports 81-731
Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21
Jones v Mortgage Acceptance Nominees Ltd (1996) 63 FCR 418
Leichhardt Municipal Council v…
Continue reading Fox v Leighton Contractors Pty Ltd
Sign in free to access the full text
- AGLC
- Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23
- Case
- [2008] NSWCA 23
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether Leighton Contractors and Downview, as principal contractors, owed a duty of care to Mr Fox, a subcontractor, to ensure he underwent safety induction training and to maintain a safe workplace. This involved considering the scope of the principal contractor's duty, including whether it was non-delegable, and whether there was a failure to take reasonable care for Mr Fox's safety. The Court also had to assess the extent of direct supervision required and whether Mr Fox was contributorily negligent by failing to take reasonable steps for his own safety.
The Court found that Leighton Contractors and Downview had a duty to take reasonable care to ensure the safety of subcontractors, including ensuring they underwent necessary safety induction training. The Court held that this duty was not discharged by delegating the task to others and that the principal contractors had failed to adequately supervise the subcontractor's compliance with safety procedures. Consequently, the Court allowed the appeal, setting aside the trial judge's order that dismissed the plaintiff's claims. The Court entered judgment for the plaintiff against the first and third defendants for the sum of $472,562.
Orders
Orders of the court
(1) (a) Allow the appeal and set aside order 2 of the trial judge dated 14 December 2006 dismissing the claims made by the plaintiff, Brian Allan Fox, against the first defendant, Leighton Contractors Pty Ltd and the third defendant, Downview Pty Ltd; (b) in lieu thereof, give judgment for the plaintiff against the first and third defendants in the amount of $472,562.
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.