CITATION: Giovenco v Dick [2010] NSWDC 4 HEARING DATE(S): 23, 24 March and 19 June 2009
JUDGMENT DATE:
4 March 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict and judgment for the plaintiff against each defendant in the sum of $350,000;
2. The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
3. On the cross claims, as between the defendants, liability is apportioned in the proportion of 20 per cent on the part of the first defendant and 80 per cent on the part of the second defendant;
4. No order as to costs in respect of the cross claims;
5. Exhibits may be returned;
6. Liberty to apply on 7 days notice if further orders are required.CATCHWORDS: TORTS – negligence – occupier’s liability – unwitnessed electrocution death of self – employed handyman in course of repairing a roof leak at the base of a redundant roof mounted solar hot water installation on rental property owned by first defendant – second defendant plumbing contractor previously carried out work on the system – redundant hot water system left connected to electricity supply – considerations under Civil Liability Act 2002 – contested liability in negligence for damages claimed by surviving de-facto spouse of deceased – liability assessment where precise mechanism of electrocution not known – whether there was contributory negligence on the part of the deceased – apportionment of liability between defendants - DAMAGES – damages agreed pursuant to Compensation to Relatives Act 1897 LEGISLATION CITED: Civil Liability Act 2002, ss 5B; 5D; 5E, 5F, 5G, 5I, 5R and 5T
Compensation to Relatives Act 1897
Electrical Safety (Electrical Installations) Regulations 1998
Evidence Act 1995, ss 79 and 80CASES CITED: Bhambra v Roet [2003] NSWCA 393
Chapman v Hearse [1961] HCA 46 at [6]; (1961) 106 CLR 112
Chappell v Hart [1998] HCA 55; (1998) 195 CLR 232
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Donoghue v Stevenson [1931] UKHL 3; (1932) AC 562;
Haber v Walker [1963] VR 339
Haynes v Harwood (1935) 1KB 146
Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 353
March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Mason v Demasi [2009] NSWCA 227
Modbury Triangle v Anzil [2000] HCA 61; (2000) 205 CLR 254
Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49
Northern Sandblasting v Harris [1997] HCA 39; (1997) 188 CLR 313
Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7
Roads and Traffic Authority of New South Wales v Dederer & Anor [2007] HCA 42; 234 CLR 330
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40TEXTS CITED: Fleming, Law of Torts, 9th Ed PARTIES: Fiona Giovenco (Plaintiff)
Geoffrey John Dick (First…
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- AGLC
- Giovenco v Dick [2010] NSWDC 4
- Case
- [2010] NSWDC 4
- Decision Date
CaseChat Overview and Summary
In the matter of Giovenco v Dick, the plaintiff, a surviving de-facto spouse, brought an action against two defendants seeking damages for the death of her partner who was electrocuted while working as a handyman on a rental property. The deceased was repairing a roof leak at the base of a solar hot water installation, which was rendered redundant by the second defendant, a plumbing contractor, who had previously worked on the system. The installation remained connected to the electricity supply, leading to the electrocution. The court had to determine the liability of both defendants under the Civil Liability Act 2002, assessing whether either was negligent, and if so, to what extent. Additionally, the court had to consider whether the deceased had contributed to his own death through negligence and how liability should be apportioned between the defendants.
The legal issues at hand revolved around the duty of care owed by the property owner to the handyman, and whether the second defendant's actions in leaving the system connected to the electricity supply amounted to a breach of that duty. Furthermore, the court needed to assess whether the deceased's actions constituted contributory negligence and how liability should be apportioned between the two defendants. The court concluded that both defendants owed a duty of care to the deceased, and that the first defendant had breached this duty by not ensuring the safety of the installation. The second defendant was found to have also breached their duty by leaving the system connected to the electricity supply. The court found that the deceased's actions did not amount to contributory negligence. The liability was apportioned between the defendants, with 20 per cent attributed to the first defendant and 80 per cent to the second defendant.
The court found in favour of the plaintiff, awarding $350,000 in damages. The defendants were ordered to pay the plaintiff's costs unless otherwise directed by the court. The liability between the defendants was apportioned, with 20 per cent attributed to the first defendant and 80 per cent to the second defendant. The court did not order costs for the cross claims between the defendants, and permitted the return of exhibits. The court granted liberty to apply for further orders if needed within seven days of the judgment.
The legal issues at hand revolved around the duty of care owed by the property owner to the handyman, and whether the second defendant's actions in leaving the system connected to the electricity supply amounted to a breach of that duty. Furthermore, the court needed to assess whether the deceased's actions constituted contributory negligence and how liability should be apportioned between the two defendants. The court concluded that both defendants owed a duty of care to the deceased, and that the first defendant had breached this duty by not ensuring the safety of the installation. The second defendant was found to have also breached their duty by leaving the system connected to the electricity supply. The court found that the deceased's actions did not amount to contributory negligence. The liability was apportioned between the defendants, with 20 per cent attributed to the first defendant and 80 per cent to the second defendant.
The court found in favour of the plaintiff, awarding $350,000 in damages. The defendants were ordered to pay the plaintiff's costs unless otherwise directed by the court. The liability between the defendants was apportioned, with 20 per cent attributed to the first defendant and 80 per cent to the second defendant. The court did not order costs for the cross claims between the defendants, and permitted the return of exhibits. The court granted liberty to apply for further orders if needed within seven days of the judgment.
Orders
Orders of the court
1. Verdict and judgment for the plaintiff against each defendant in the sum of $350,000;
2. The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
3. On the cross claims, as between the defendants, liability is apportioned in the proportion of 20 per cent on the part of the first defendant and 80 per cent on the part of the second defendant;
4. No order as to costs in respect of the cross claims;
5. Exhibits may be returned;
6. Liberty to apply on 7 days notice if further orders are required.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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