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Gaskin v Ollerenshaw

Gaskin v Ollerenshaw

Case [2010] NSWSC 791 16 July 2010

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CITATION: Gaskin v Ollerenshaw [2010] NSWSC 791

HEARING DATE(S): 16-18, 21 June and 16 July 2010

JUDGMENT DATE :
16 July 2010

JURISDICTION: 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 5

CATEGORY: 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 141

PARTIES: 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 DIVISION

GARLING J

FRIDAY, 16 JULY 2010

2006/266967 LESLIE GASKIN v MATTHEW OLLERENSHAW
JUDGMENT

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…

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 Gaskin v Ollerenshaw

Details

AGLC: Gaskin v Ollerenshaw [2010] NSWSC 791
Case: [2010] NSWSC 791
Decision Date: 16 July 2010

CaseChat Overview and Summary

The plaintiff in Gaskin v Ollerenshaw sought to recover damages for personal injuries sustained during the course of his employment as a roof painter. The plaintiff alleged that the defendant, the occupier of the premises, breached their duty of care by failing to inspect the roof for potential hazards and warn the plaintiff of any dangers. The case was heard in the Supreme Court of New South Wales. The court was tasked with determining whether the defendant had a duty of care towards the plaintiff and whether this duty was breached. Additionally, the court considered whether the plaintiff was contributorily negligent and assessed the damages for the injuries sustained.

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