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Harford v Hallmark Construction Pty Ltd

Harford v Hallmark Construction Pty Ltd

Case [2019] NSWSC 371 17 April 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Harford v Hallmark Construction Pty Ltd [2019] NSWSC 371
Hearing dates: 18-22 February 2019
Date of orders: 17 April 2019
Decision date: 17 April 2019
Jurisdiction: Common Law
Before: Fagan J
Decision:
In proceedings No 2015/234127 Harford v Hallmark Construction Pty Ltd
(1) Judgment for the plaintiff in the sum at which his damages have been agreed.
(2) The defendant pay the plaintiff’s costs.
(3) Copeland Building Services Pty Ltd is to indemnify the defendant for half of the judgment that is to be entered in favour of the plaintiff.
(4) Copeland Building Services Pty Ltd is to pay the defendant’s costs of the further amended first cross-claim.
(5)The further amended first cross-claim filed 22 November 2018 is dismissed as against the second, third and fourth cross defendants, with costs.
In proceedings No 2015/152742, Harford Transport Pty Ltd v Hallmark Construction Pty Ltd
(1) Judgment for the plaintiff for the sum in which the recoverable benefits and interest thereon have been agreed.
(2) The defendant pay the plaintiff’s costs.
(3) Copeland Building Services Pty Ltd is to indemnify the defendant for half of the judgment that is to be entered in favour of the plaintiff.
(4) Copeland Building Services Pty Ltd is to pay the defendant’s costs of the second further amended first cross-claim.
(5) The second further amended first cross-claim filed 22 November 2018 is dismissed as against the second, third and fourth cross defendants, with costs.
Catchwords:
TORTS - Negligence– Liability for others’ negligence – Apportionment of responsibility – occupier’s liability – joint occupation – whether effective control over part of building site containing hazard – whether negligence attributable to occupier through agency – whether tortfeasor a “true agent” or “agent properly so called” for attribution of tortious acts to putative principal– failure adequately to safeguard hazard or warn – dual vicarious liability impossible – tortfeasors equally in breach of respective duties
WORKERS' COMPENSATION – recovery of benefits paid - apportionment and contribution between employers – s 151Z workers compensation claim – equal apportionment of contribution by tortfeasors
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Central Darling Shire Council v Greeney [2015] NSWCA 51
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41; [1931] HCA 53
Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72

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 Harford v Hallmark Construction Pty Ltd

Details

AGLC: Harford v Hallmark Construction Pty Ltd [2019] NSWSC 371
Case: [2019] NSWSC 371
Decision Date: 17 April 2019

CaseChat Overview and Summary

The plaintiff, Harford, brought an action against Hallmark Construction Pty Ltd, alleging negligence and seeking damages for injuries sustained at a building site. The site was jointly occupied by Hallmark and another contractor, who had subcontracted the work to the plaintiff. Harford claimed that the injuries were caused by a hazard on the site, which both contractors failed to adequately safeguard or warn against. The court was tasked with determining the liability of Hallmark for the negligence of the subcontractor, as well as the apportionment of damages and workers' compensation benefits between the two contractors.

The central legal issues in the case were whether Hallmark could be held liable for the negligence of the subcontractor under the principles of agency and occupier’s liability, and if so, whether such liability could be apportioned. The court had to consider whether the subcontractor was a “true agent” or “agent properly so called” of Hallmark, which would allow for the attribution of the tortious acts to Hallmark. Additionally, the court needed to address the apportionment of damages and workers' compensation benefits between the two contractors under the relevant statutory provisions.

The court found that Hallmark could be held liable for the subcontractor's negligence, as the subcontractor was considered a “true agent” of Hallmark for the purposes of the tort. The court determined that Hallmark had effective control over the part of the site where the hazard was located, and thus, the negligence of the subcontractor could be attributed to Hallmark through agency. The court also concluded that dual vicarious liability was impossible in this scenario, as both contractors were equally in breach of their respective duties. Consequently, the damages and workers' compensation benefits were to be equally apportioned between Hallmark and the subcontractor under section 151Z of the relevant legislation.

The court ordered that Hallmark Construction Pty Ltd and the subcontractor were to be equally liable for the damages and workers' compensation benefits arising from the incident. Each party was responsible for 50% of the total damages awarded to Harford and for an equal share of the workers' compensation benefits previously paid to Harford. This decision underscores the importance of effective control and the need for adequate safety measures on jointly occupied building sites.

Orders