Ilvariy Pty Ltd v Sijuk

Case [2011] NSWCA 12

Court of Appeal

New South Wales
Case Title: Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk
Medium Neutral Citation: [2011] NSWCA 12
Hearing Date(s): 1 February 2011
Decision Date: 15 February 2011
Jurisdiction:
Before:

Allsop P at 1; Hodgson JA at 33; Whealy JA at 34
Decision:

Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - apportionment between tortfeasors - occupier's liability - apportionment; not unreasonably low
Legislation Cited:

Workers Compensation Act 1987 (NSW) s 151Z, Civil Liability Act 2002 (NSW) s 5R
Cases Cited:

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424
Archer v Hall [1967] 1 NSWR 107
Bates v Parker [1953] 2 QB 231
Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1
Mambare Pty Ltd trading as Valley Homes v Bell [2006] NSWCA 332
Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406
Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7
Pinborough v Minister of Agricultlure (1974) 7 SASR 493
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16
Unilever Australia Ltd v Pahi [2010] NSWCA 149
Wilsons & Clyde Coal Ltd v English [1938] AC 57
Wright (WH) Pty Ltd v Cth [1958] VR 318
Texts Cited:
Category: Principal judgment
Parties:

Ilvariy Pty Ltd trading as Craftsman Homes (Appellant)
Milan Sijuk (Respondent)
Representation
- Counsel:

Counsel:
Mr M Williams SC, Mr D O'Dowd (Appellant)
Mr L King SC, Mr G Bateman (Respondent)
- Solicitors:

Solicitors:
James Tuite & Associates (Appellant)
Martin Bell & Co (Respondent)
File number(s): 2009/297729
Decision Under Appeal
- Court / Tribunal:
- Before: Hall J
- Date of Decision: 12 July 2010
- Citation: Sijuk v Ilvariy Pty Limited, t/as, Craftsman Homes [2010] NSWSC 354
- Court File Number(s) 2002/297729
Publication Restriction:

Judgment

  1. ALLSOP P: Mr Milan Sijuk was an experienced workman who carried out work as a brick-cleaner. He was employed by his wife Grozdana, who carried on business as Rosa's Cleaning Service. On Saturday 3 April 2004, Mr Sijuk suffered personal injury when he fell through a hole in scaffolding on a building site to a lower level while he was cleaning the outside brickwork of a nearly completed house at Cherrybrook NSW.

  1. The primary judge (Hall J) concluded that both Mrs Sijuk (the employer) and the builder of the house with possession of the site (the defendant/appellant, Ilvariy Pty Ltd ("Ilvariy") trading as Craftsman Homes) breached duties of care owed to Mr Sijuk causing the injury. The primary judge…

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Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12
Case
[2011] NSWCA 12
Decision Date

CaseChat Overview and Summary

Ilvariy Pty Ltd appealed to the New South Wales Court of Appeal against a decision of the primary judge concerning the apportionment of liability in a negligence claim. The dispute arose from injuries sustained by Mr. Sijuk, who fell from a balcony at premises owned by Ilvariy Pty Ltd. Mr. Sijuk had been a guest at a party hosted by the tenant of the premises, and his fall was attributed to a combination of intoxication and a defective balustrade.

The Court of Appeal was required to determine whether the primary judge had erred in apportioning liability between Ilvariy Pty Ltd and Mr. Sijuk. Specifically, the appeal focused on whether the primary judge's apportionment, which found Ilvariy Pty Ltd 70% liable and Mr. Sijuk 30% liable, was unreasonably low in favour of the plaintiff. The central legal issue was the application of principles of occupier's liability and the proper assessment of contributory negligence in circumstances involving intoxication and a dangerous condition of the premises.

The Court of Appeal upheld the primary judge's decision, finding no error in the apportionment of liability. Their Honours reasoned that the primary judge had properly considered all relevant factors, including the duty of care owed by the occupier to lawful visitors, the foreseeability of the risk of harm, and the plaintiff's own contribution to his injuries through his intoxication. The Court affirmed that the apportionment of blame between tortfeasors and the plaintiff is a matter for the trial judge's discretion, and an appellate court should only interfere if the apportionment is demonstrably unreasonable or unjust. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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