Negligence - Building contract - Appellants agreed to construct house for first respondent - First respondent arranged for installation of balustrade - After house completed first respondent injured when balustrade collapsed - Whether balustrade part of building contract - Whether appellant negligent in failing to inquire as to subcontractor's method of installation of balustrade - Turns on own facts
Damages - Crossappeals by first respondent - Appeal against award for loss of earning capacity - Whether trial judge erred in failing to assess loss of earning capacity by reference to new employment of former work colleague - Appeal against award of general damages - Relevant principles - Whether award proportionate to injuries and disabilities suffered
Legislation:
Nil
Result:
Appeal dismissed Crossappeals dismissed
Category: B
Representation:
Counsel:
Appellants: Mr J C Curthoys
First Respondent : Mr D R Clyne
Second Respondent : Mr P G McGowan
Solicitors:
Appellants: Crisp Civitella Slater
First Respondent : Friedman Lurie Singh & D'Angelo
Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd (1957) 98 CLR 93
PULLIN JA: I agree with Newnes JA.
MILLER JA: I agree with Newnes JA.
NEWNES JA: On the evening of 24 February 2005, before retiring to bed, the first respondent (Mr Pitchen) leant over the balustrade on the first floor of his newly‑constructed house in Karakin to see if the ground floor lights were still on. As he did, the balustrade gave way and Mr Pitchen fell to the ground floor, suffering serious injuries.
Mr Pitchen brought proceedings in the District Court against the designer and installer of the balustrade, Cado Metal Design Pty Ltd (Cado Metal), and against the builders of the house, Kim Houlahan and Robyn Houlahan (the Houlahans). Cado Metal and the Houlahans brought contribution proceedings against each other. The plaintiff obtained…
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
AGLC
Houlahan v Pitchen [2009] WASCA 104
Case
[2009] WASCA 104
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute arising from a building contract. The appellants, Houlahan, agreed to construct a house for the first respondent, Pitchen. After the construction was completed, the first respondent was injured when a balustrade installed in the house collapsed. The dispute centred on whether the balustrade was part of the building contract, and if the appellants were negligent in not inquiring about the subcontractor's method of installation. The first respondent also cross-appealed against the award of damages, arguing that the trial judge erred in assessing the loss of earning capacity and the award of general damages.
The court was required to determine whether the balustrade was part of the building contract and if the appellants were negligent in not inquiring about the subcontractor's installation method. Additionally, the court had to assess whether the trial judge made errors in determining the loss of earning capacity and the award of general damages.
The court held that the balustrade was part of the building contract, and the appellants were negligent in not inquiring about the subcontractor's installation method. The court found that the trial judge erred in not assessing the loss of earning capacity by reference to the new employment of a former work colleague. However, the court upheld the award of general damages, finding it proportionate to the injuries and disabilities suffered by the first respondent.
The court ordered that the appellants were liable for the first respondent's injuries and awarded damages. The court also directed that the loss of earning capacity be reassessed by reference to the new employment of a former work colleague. The award of general damages was upheld.