Hallmark Construction Pty Ltd v Brett Harford

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Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41
Hearing dates: 10 December 2019
Decision date: 17 March 2020
Before: Basten JA at [1];
Meagher JA at [110];
Emmett AJA at [111]
Decision:

In matter no 2019/146962 (Hallmark Construction Pty Ltd v Brett Harford):

 

(1)   Allow the appeal in part and vary order (3) made on 17 April 2019 to substitute an amount of $1,200,000 as the amount payable by Copeland Building Services Pty Ltd to Hallmark Construction Pty Ltd.
(2)   Otherwise dismiss the appeal.

 

In matter no 2019/151040 (Copeland v Hallmark):

 

(1)   Dismiss the appeal.

 

In matter no 2019/146975 (Hallmark v Harford Transport):

 

(1)   Allow the appeal in part and vary order (4) made on 17 April 2019 to substitute the sum of $121,564.64 as the amount payable by Copeland to Hallmark.
(2)   Direct that the variation take effect from the date of the orders made in the Common Law Division, namely 17 April 2019.
(3)   Liberty to apply with respect to (1) and (2), to be exercised on three days' notice and within 28 days of the delivery of judgment.
(4)   Otherwise dismiss the appeal.

 

In matter no 2019/151310 (Copeland v Hallmark):

 

(1)   Dismiss the appeal.

 

With respect to the costs of the four proceedings in this Court:

 (1)   Order the appellants (Hallmark and Copeland) pay the costs of the respondents, namely Brett Harford, Harford Transport Pty Ltd, Certain Underwriters at Lloyds subscribing to Policy No CV004/226CGL and Berkley Insurance Company. As between the appellants, liability should be apportioned equally.
(2)   Order that Copeland pay 15% of Hallmark’s costs of the four appeals.
Catchwords:

TORTS – general principles – vicarious liability – workplace – liability of builder for negligent acts of supervisor on building site – supervisor employed by independent contractor – supervisor under builder’s control – whether employer of supervisor vicariously liable for negligence of supervisor

 

TORTS – negligence – apportionment of responsibility between tortfeasors – both parties occupied parts of building site – liability of head contractor – liability of subcontractor undertaking building work – heavy metal plate covering penetration into underground retention pit removed – replacement with empty pallet – delivery driver injured by fall into pit

 

TORTS – negligence – contributory negligence – injury to driver of truck – delivery of supplies to building site before dawn – driver clearing site of empty pallet – concealed penetration into underground retention pit – Civil Liability Act 2002 (NSW), s 5R

TORTS – negligence – employer – duty of corporate alter ego of sole employee to provide safe system of work – business involved delivery of supplies to building sites – assessment of risks at sites not controlled by employer – Civil Liability Act 2002 (NSW), s 5B
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5R
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Details
Case
[2020] NSWCA 41
Decision Date

CaseChat Overview and Summary

In the New South Wales Court of Appeal, Hallmark Construction Pty Ltd and Copeland Building Services Pty Ltd appealed against decisions concerning liability for injuries sustained by Brett Harford and damage to a truck owned by Harford Transport Pty Ltd. The dispute arose from an incident where a delivery driver, Mr Harford, fell into an uncovered pit on a building site. Hallmark was the head contractor, and Copeland was a subcontractor. The appeals also involved cross-appeals and appeals by Copeland against Hallmark.

The court was required to determine several legal issues, including the vicarious liability of Hallmark for the negligent acts of a supervisor on the building site, who was employed by Copeland but allegedly under Hallmark's control. Further issues involved the apportionment of responsibility between Hallmark and Copeland as tortfeasors, given their respective roles and occupation of parts of the building site. The court also considered the extent of contributory negligence by Mr Harford and the duty of care owed by Copeland, as a corporate alter ego of its sole employee, to provide a safe system of work, particularly in assessing risks at sites not under its direct control.

The court reasoned that while Copeland was vicariously liable for the negligence of its supervisor, Hallmark was not vicariously liable for the supervisor's actions as the supervisor was not under Hallmark's direct control. The court found that both Hallmark and Copeland were negligent in failing to ensure the pit was safely covered or barricaded. The court applied principles of negligence and apportionment of responsibility, considering the Civil Liability Act 2002 (NSW) regarding contributory negligence and the duty of care.

The appeals were allowed in part, varying the amounts payable between the parties and directing that these variations take effect from the date of the original orders. The appeals were otherwise dismissed. Costs were ordered against Hallmark and Copeland, with an apportionment of liability for the costs of the appeals between them.

Orders

Orders of the court

In matter no 2019/146962 (Hallmark Construction Pty Ltd v Brett Harford):

(1) Allow the appeal in part and vary order (3) made on 17 April 2019 to substitute an amount of $1,200,000 as the amount payable by Copeland Building Services Pty Ltd to Hallmark Construction Pty Ltd.

(2) Otherwise dismiss the appeal.

In matter no 2019/151040 (Copeland v Hallmark):

(1) Dismiss the appeal.

In matter no 2019/146975 (Hallmark v Harford Transport):

(1) Allow the appeal in part and vary order (4) made on 17 April 2019 to substitute the sum of $121,564.64 as the amount payable by Copeland to Hallmark.

(2) Direct that the variation take effect from the date of the orders made in the Common Law Division, namely 17 April 2019.

(3) Liberty to apply with respect to (1) and (2), to be exercised on three days' notice and within 28 days of the delivery of judgment.

(4) Otherwise dismiss the appeal.

In matter no 2019/151310 (Copeland v Hallmark):

(1) Dismiss the appeal.

With respect to the costs of the four proceedings in this Court:

(1) Order the appellants (Hallmark and Copeland) pay the costs of the respondents, namely Brett Harford, Harford Transport Pty Ltd, Certain Underwriters at Lloyds subscribing to Policy No CV004/226CGL and Berkley Insurance Company. As between the appellants, liability should be apportioned equally.

(2) Order that Copeland pay 15% of Hallmark’s costs of the four appeals.

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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