CITATION: Gaskin v Ollerenshaw [2010] NSWSC 791 HEARING DATE(S): 16-18, 21 June and 16 July 2010
JUDGMENT DATE :
16 July 2010JURISDICTION: Common Law JUDGMENT OF: Garling J DECISION: Judgment for the defendant. Plaintiff to pay the defendant’s costs. CATCHWORDS: NEGLIGENCE – Duty of care – Occupiers liability – Duty to independent contractor – Plaintiff was an experienced roof painter – Allegation that occupier breached his duty of care by, inter alia, failing to inspect roof and to warn of danger – Whether occupier put on notice of potential danger – Breach of duty denied – No breach of duty found - CONTRIBUTORY NEGLIGENCE – Allegation that plaintiff failed to take proper care of own safety – Contributory negligence not found - DAMAGES – Assessment of damages for personal injury –Past and future economic loss – Gratuitous domestic assistance. LEGISLATION CITED: Civil Liability Act 2002 ss 5R, 13, 15
Conveyancing Act 1919 s 66R
Uniform Civil Procedure Rules 2005 Schedule 5CATEGORY: Principal judgment CASES CITED: Aslanidis v Atsidakos, NSWCA, 13 February 1989
Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479
Baker v Gilbert [2003] NSWCA 113
Balesfire Pty Limited t/as The Gutter Shop v Jamie Adams & Ors; Jamie Adams v Balesfire Pty Limited t/as The Gutter Shop & Ors [2006] NSWCA 112
Drotem Pty Limited v Manning [2000] NSWCA 320
Hackshaw v Shaw (1984) 155 CLR 614
Ordukaya v Hicks [2000] NSWCA 180
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7
Perkovic v Owners Strata Plan 8806 [1999] NSWCA 153
Short v Barrett, NSWCA, 5 October 1990, unreported
Stannus v Graham (1994) Aust Torts Reporter 81–293
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Thompson v Woolworths (Qld) Pty Limited (2005) 221 CLR 234
Uniting Church in Australia Property Trust v Takacs [2008] NSWCA 141PARTIES: Leslie Gaskin (P)
Matthew Ollerenshaw (D)FILE NUMBER(S): SC 2006/266967 COUNSEL: M Maxwell and M Gilbert (P)
R A Cavanagh (D)SOLICITORS: Brydens Law Office (P)
Henry Davis York (D)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONGARLING J
FRIDAY, 16 JULY 2010
JUDGMENT2006/266967 LESLIE GASKIN v MATTHEW OLLERENSHAW
1 HIS HONOUR: The plaintiff, Leslie Gaskin, claims damages from the defendant, Matthew Ollerenshaw, for serious injuries which he suffered on 9 January 2003 whilst he was engaged in painting the roof of the house at 112 Solander Road, Kings Langley (“the Kings Langley house”), which the defendant and his wife were purchasing.
2 The plaintiff was an experienced roof painter having been in the business for about 30 years. He had learned his trade from his father and had taught his wife, son and daughter the trade as well. The defendant retained him as an experienced roof painter, working as an independent contractor, to paint the roof of the Kings Langley house.
3 The plaintiff climbed up on to a flat “Cliplock” style steel roof suspended above a concrete floored verandah. From that roof, he started to paint the…
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- Gaskin v Ollerenshaw [2010] NSWSC 791
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- [2010] NSWSC 791
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CaseChat Overview and Summary
The court examined the relationship between the occupier and the independent contractor, the plaintiff, and whether the occupier was put on notice of the potential danger on the roof. The court held that there was no evidence to suggest that the occupier had knowledge of the dangerous condition, and therefore, no breach of duty was found. Furthermore, the court found that the plaintiff was not contributorily negligent as he had taken reasonable care for his own safety. In relation to damages, the court awarded compensation for the plaintiff's past and future economic loss and gratuitous domestic assistance.
The court found in favour of the defendant, ruling that there was no breach of duty of care and no contributory negligence on the part of the plaintiff. The plaintiff was awarded damages for his injuries, including compensation for past and future economic loss and gratuitous domestic assistance. The court's decision highlights the importance of an occupier's duty of care towards independent contractors and the need for proper safety measures to be in place to prevent accidents.
Orders
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Background
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Decision
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Ratio Decidendi
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