Gratrax Pty Ltd v T D & C Pty Ltd - [2013] QCA 385

SUPREME COURT OF QUEENSLAND

CITATION:

Gratrax Pty Ltd v T D & C Pty Ltd [2013] QCA 385

PARTIES:

GRATRAX PTY LTD
ACN 010 526 824
(appellant)
v
T D & C PTY LTD
ACN 005 929 402
(respondent)

FILE NO/S:

Appeal No 4107 of 2013
DC No 3774 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2013

JUDGES:

Fraser and Morrison JJA and Margaret Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – where the appellant retained the respondent to design a road – where the respondent’s design specified the wrong class of materials to be used in connection with the construction of the road – where the trial judge found the respondent failed to exercise proper care and skill – where the appellant was required to undertake testing and approval of the material and pavement prior to commencing work – where the appellant proceeded to lay the pavement without obtaining the appropriate testing, inspection and approval – where the trial judge concluded that the factual causation test in s 11(1)(a) of the Civil Liability Act 2003 (Qld) (‘the Act’) was satisfied but that the appellant’s actions in prematurely laying the pavement meant that the scope of liability test in s 11(1)(b) of the Act was not satisfied – where the respondent was found to be liable only for the additional costs the appellant would have sustained as a result of the respondent’s negligence if it had not prematurely commenced construction – whether the trial judge erred in approaching the question of causation – whether the appellant’s intervening act or decision was a more immediate cause of its loss than the respondent’s breach

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where, although it was not necessary to make such a finding, the trial judge found that the appellant failed to take reasonable care in prematurely commencing work – where the trial judge did not otherwise make any apportionment to account for the appellant’s contributory negligence – whether the trial judge erred in failing to carry out the assessment of damages to take account of the appellant’s contributory negligence

Civil Liability Act 2003 (Qld), s 7(5), s 11(1), s 11(1)(b)
Law Reform Act 1995 (Qld), s 10(1)

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48, cited
Gratrax Pty Ltd v T D & C Pty Ltd [2013] QDC 63, related
Hirst v Nominal Defendant [2005] 2 Qd R 133; [2005] QCA 65, considered
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10, considered
Mallesons Stephen Jaques v Trenorth Ltd [1999] 1 VR 727; [1998] VSCA 58,…

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: [2013] QCA 385
Decision Date: 17 December 2013

CaseChat Overview and Summary

Gratrax Pty Ltd, the appellant, engaged T D & C Pty Ltd, the respondent, to design a road. Gratrax brought an action against the respondent for negligence after the respondent specified the wrong class of materials to be used in the construction. The respondent was found to have failed to exercise proper care and skill in the design, leading Gratrax to lay the pavement without obtaining the necessary testing, inspection and approval. Gratrax claimed damages for the costs it incurred due to the respondent's negligence.

The primary legal issues in the case were whether the trial judge correctly determined causation under the Civil Liability Act 2003 (Qld) and whether the trial judge erred in not accounting for Gratrax's contributory negligence. The court had to determine if the respondent's negligence was the factual cause of Gratrax's loss under s 11(1)(a) of the Act and if Gratrax's premature commencement of construction was a more immediate cause of its loss than the respondent's breach under s 11(1)(b) of the Act. Additionally, the court had to assess whether the trial judge erred in not apportioning damages to account for Gratrax's contributory negligence.

The appeal court found that the trial judge correctly determined causation under the Act, as the factual causation test was satisfied, but the scope of liability test was not, due to Gratrax's premature commencement of construction. The court held that the trial judge did not err in finding that Gratrax's actions were a more immediate cause of its loss than the respondent's breach. The court also held that the trial judge did not err in not apportioning damages for Gratrax's contributory negligence, as it was not necessary to make such a finding in this case.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed 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:	Gratrax Pty Ltd v T D & C Pty Ltd [2013] QCA 385
PARTIES:	GRATRAX PTY LTD ACN 010 526 824 (appellant) v T D & C PTY LTD ACN 005 929 402 (respondent)
FILE NO/S:	Appeal No 4107 of 2013 DC No 3774 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2013
JUDGES:	Fraser and Morrison JJA and Margaret Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – where the appellant retained the respondent to design a road – where the respondent’s design specified the wrong class of materials to be used in connection with the construction of the road – where the trial judge found the respondent failed to exercise proper care and skill – where the appellant was required to undertake testing and approval of the material and pavement prior to commencing work – where the appellant proceeded to lay the pavement without obtaining the appropriate testing, inspection and approval – where the trial judge concluded that the factual causation test in s 11(1)(a) of the Civil Liability Act 2003 (Qld) (‘the Act’) was satisfied but that the appellant’s actions in prematurely laying the pavement meant that the scope of liability test in s 11(1)(b) of the Act was not satisfied – where the respondent was found to be liable only for the additional costs the appellant would have sustained as a result of the respondent’s negligence if it had not prematurely commenced construction – whether the trial judge erred in approaching the question of causation – whether the appellant’s intervening act or decision was a more immediate cause of its loss than the respondent’s breach TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where, although it was not necessary to make such a finding, the trial judge found that the appellant failed to take reasonable care in prematurely commencing work – where the trial judge did not otherwise make any apportionment to account for the appellant’s contributory negligence – whether the trial judge erred in failing to carry out the assessment of damages to take account of the appellant’s contributory negligence Civil Liability Act 2003 (Qld), s 7(5), s 11(1), s 11(1)(b) Law Reform Act 1995 (Qld), s 10(1) Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48, cited Gratrax Pty Ltd v T D & C Pty Ltd [2013] QDC 63, related Hirst v Nominal Defendant [2005] 2 Qd R 133; [2005] QCA 65, considered Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10, considered Mallesons Stephen Jaques v Trenorth Ltd [1999] 1 VR 727; [1998] VSCA 58,…