Herbert v Clarendon Homes (NSW) Pty Ltd - [2013] NSWSC 1158

Supreme Court

New South Wales

Medium Neutral Citation: Herbert v Clarendon Homes (NSW) Pty Ltd [2013] NSWSC 1158
Hearing dates: 7 and 8 August 2013
Decision date: 23 August 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Verdict for plaintiff.
Parties directed to prepare short minutes.

Catchwords:
NEGLIGENCE - accident on building site - duty of care - independent contractors - subcontractor - whether principal contractor on building site owed duty of care to independent contractor engaged by subcontractor - scope of duty - breach - employee of principal contractor lifted garage door occasioning injury to plaintiff - whether staff on site should have been notified of presence of plaintiff in garage - whether warning sign should have been erected - whether bolt should have been affixed to door - whether employee was careless in lifting the door - causation - contributory negligence.
DAMAGES - past economic loss - income splitting - future economic loss - whether plaintiff has residual earning capacity - past and future care - out of pocket expenses.
Legislation Cited: - Civil Liability Act 2002
- Social Security Act 1991 (Cth)
Cases Cited: - Benic v State of New South Wales [2010] NSWSC 1039
- Donoghue v Stevenson [1932] AC 562
- Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
- Husher v Husher [1999] HCA 47; 197 CLR 138
- Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1
- Malec v J.C. Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
- Novakovic v Stekovic [2012] NSWCA 54
- Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406
- Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
- Rabay v Bristow [2005] NSWCA 199
- Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
- Shaw v Thomas [2010] NSWCA 169
- Sibraa v Brown [2012] NSWCA 328
- Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16
- Sydney Water Corporation v Abramovic [2007] NSWCA 248
- Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234
- Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
- Visyboard Pty Ltd v Ranieri [1999] NSWCA 331
- Wallace v Kam [2012] NSWCA 82
- Wallace v Kam [2013] HCA 19; 87 ALJR 648
Category: Principal judgment
Parties: Ray Herbert (Plaintiff)
Clarendon Homes (NSW) Pty Ltd (Defendant)
Representation: Counsel:
A.J. Lidden SC, M.J. Maxwell (Plaintiff)
R.A. Cavanagh SC (Defendant)
Solicitors:
Brydens Compensation Lawyers (Plaintiff)
Lee & Lyons (Defendant)

File Number(s): 2011/331103

Judgment

On 28 November 2008 the plaintiff, Mr Ray Herbert, seriously injured his left leg while performing plastering work in a garage at a home that was being constructed in Bulli by the defendant, Clarendon Homes (NSW) Pty Ltd (the "Bulli house" and "Clarendon" respectively). Clarendon had engaged a company in the Boral Group to perform the plastering work, which in turn had been subcontracted to…

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] NSWSC 1158
Decision Date: 23 August 2013

CaseChat Overview and Summary

In Herbert v Clarendon Homes (NSW) Pty Ltd, the plaintiff, Herbert, sought damages for injuries sustained on a building site operated by the defendant, Clarendon Homes. The incident occurred when an employee of Clarendon Homes lifted a garage door, causing Herbert, who was an independent contractor engaged by a subcontractor, to be injured. The primary issues before the court were whether Clarendon Homes owed a duty of care to Herbert, and if so, whether this duty was breached. The court was also tasked with determining the extent of Herbert's damages, including past and future economic loss, care expenses, and out-of-pocket costs.

The court considered the principles established in precedent cases such as Commonwealth v Introvigne and Jaensch v Coffey, focusing on the foreseeability of the risk and the proximity of the relationship between the parties. The court found that Clarendon Homes, as the principal contractor, did owe a duty of care to Herbert, given the foreseeability of the risk of injury from the garage door. The court further held that this duty was breached by failing to adequately warn staff of Herbert's presence in the garage and by not implementing measures such as affixing a bolt to the door or posting a warning sign. Additionally, the court examined whether the employee's actions in lifting the door constituted carelessness.

The court concluded that Clarendon Homes was liable for Herbert's injuries, finding that the failure to take reasonable steps to prevent the injury amounted to a breach of duty. Regarding damages, the court awarded Herbert compensation for past economic loss, future economic loss, care expenses, and out-of-pocket costs. The court also considered Herbert's residual earning capacity in assessing future economic loss. The final orders of the court reflected these findings, providing Herbert with the necessary compensation for his injuries and losses.

Orders