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Hossain v Unity Grammar College Ltd

Hossain v Unity Grammar College Ltd

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Case Copied 1 October 2019 86 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hossain v Unity Grammar College Ltd and Ors [2019] NSWSC 1313
Hearing dates: 23; 24; 25; 26; 27 July 2018; 1; 3 August 2018
Date of orders: 01 October 2019
Decision date: 01 October 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
See [256]

Catchwords:
NEGLIGENCE – Severe personal injury – gas explosion at place of work – second stage gas regulator negligently installed – gasfitting at school – Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (Repealed)

CIVIL LIABILITY – Common Law duty – whether duty of principal contractor can give rise to a non-delegable duty – whether duty will always be discharged by appointment of independent contractor – requirement of certain factors – held circumstances can exist between principal contractor and plaintiff giving rise to non-delegable duty.

CIVIL LIABILITY – Statutory duty – whether breach gives rise to private right of action – whether contrary to legislative purpose of Regulation – whether clause is penal in nature – whether plaintiff included in class of individuals to whom a duty is owed – statutory breach made out.

DAMAGES – Joint liability – law of negligence – proceedings for recovery of damages for personal injury – multiple parties – action may be brought against each tortfeasor – subject to statutory modifications – not to recover more than full
satisfaction for loss against one or more of the tortfeasors – whether any of the active parties legally responsible for Mr Hossain’s injuries.
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(1)(f), 5A, 5D, 16
Corporations Act 2001 (CTH), s 601AG
Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (Repealed)
Dangerous Goods Regulation 1978 (NSW) (Repealed)
Environmental Planning & Assessment Act 1979 NSW, ss 190H,(5), 109M
Evidence Act 1995 (NSW), ss (3)(b), 69(2)
Gas Supply Act 1996 (NSW)
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
Avropiling Pty Ltd v Boveski [2018] NSWCA 146
Bennett v Minister of Community Welfare (1992) 176 CLR 409; [1992] HCA 27
Bevillesta Pty Ltd and Liberty International Insurance (2009) NSWCA 16 Burrows v March Gas & Coke Co. (1872) LR7 Ex 96
Blatch v Archer (1774) 1 COWP 63; 98 ER 969
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13
Burrows v March Gas & Coke Co. (1872) LR7 Ex 96
Byrne v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24
Caltex Refiners (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Croston v Vaughan [1938] 1 KB 540
CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 466; [2013] NSWCA 49;
Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
Davie v New Merton Board Mills [1959] AC 604;
Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357
Fangrove…

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: [2019] NSWSC 1313
Decision Date: 01 October 2019

CaseChat Overview and Summary

Hossain v Unity Grammar College Ltd involved a severe personal injury claim resulting from a gas explosion at the plaintiff's place of work. The incident occurred due to the negligent installation of a second stage gas regulator by a gasfitter at Unity Grammar College. The case was heard by the NSW Supreme Court. The plaintiff sought to hold the school liable for the injuries sustained.

The primary legal issues before the court were whether the principal contractor, in this case the school, owed a non-delegable duty of care to the plaintiff, and whether the statutory duty under the Dangerous Goods (Gas Installations) Regulation 1998 (NSW) created a private right of action. Additionally, the court had to determine if the breach of the regulation was penal in nature and whether it was contrary to the legislative purpose. Finally, the court had to consider the principles of joint liability and the statutory modifications to ensure the plaintiff did not recover more than full satisfaction for his loss.

In determining these issues, the court found that under certain circumstances, the principal contractor could owe a non-delegable duty of care to the plaintiff, which was not necessarily discharged by the appointment of an independent contractor. The court held that the statutory duty did give rise to a private right of action, and the breach of the regulation was not penal in nature. The plaintiff was included within the class of individuals to whom the duty was owed. The court also found that the statutory breach was made out and that the school, as the principal contractor, was one of the active parties legally responsible for the plaintiff’s injuries.

The court ordered that the plaintiff could recover damages from the school for the injuries sustained, ensuring that the recovery did not exceed full satisfaction for the loss.

Orders