Jones v Dyldam Developments Pty Ltd - [2007] NSWSC 754

CITATION: Jones v Dyldam Developments Pty Ltd & Anor [2007] NSWSC 754

HEARING DATE(S): 25 June 2007; 26 June 2007; 27 June 2007; 28 June 2007; 29 June 2007

JUDGMENT DATE :
13 July 2007

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: 1. Verdict for the plaintiff against the first defendant; 2. Verdict for the plaintiff against the second defendant; 3. The parties are to bring in short minutes of orders to reflect the findings of fact and conclusions herein.

CATCHWORDS: TORT – NEGLIGENCE – personal injury – duty of care – claim for damages – plaintiff injured in the course of employment as bricklayers’ labourer – permanent incapacity – apportionment of liability between defendants - DAMAGES – as against the first defendant: non-economic loss – past out of pocket expenses – future out of pocket expenses – past wage loss – past loss of superannuation – future wage loss – future loss of superannuation – Fox v Wood – past domestic assistance – future domestic assistance - DAMAGES – as against the second defendant: past economic loss – future economic loss - PRACTICE AND PROCEDURE – medical evidence – duty of legal representatives – excessive material tendered – costs incurred not to be recoverable

LEGISLATION CITED: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998

CASES CITED: BP Australia Pty Ltd v Tarren [2006] NSWCA 305
Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423; (2005) Aust Torts Reports 81-814
Heuston v Yore Contractors Pty Ltd, unreported, 9 March 1992
Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145
Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174
Penrith City Council v Parks [2004] NSWCA 201

PARTIES: Warren Jones (Plaintiff)
Dyldam Developments Pty Ltd (First Defendant)
Samorto 13 Pty Ltd (in liq) (previously known as Sydney Bricklaying Construction Pty Ltd) (Second Defendant)

FILE NUMBER(S): SC 20355 of 2006

COUNSEL: A Lidden SC/J de Greenlaw (Plaintiff)
J Graves SC (First Defendant)
M J Jenkins (Second Defendant)

SOLICITORS: Bale Boshev (Plaintiff)
Hicksons (First Defendant)
Home Wilkinson Lowry (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

Simpson J

13 July 2007

20355/06 Warren Jones v Dyldam Developments Pty Ltd & Anor
JUDGMENT

1 HER HONOUR: By statement of claim originally filed in the District Court on 3 February 2006 the plaintiff claims damages for personal injury he alleges he suffered in 2003 when employed by the second defendant (then known as Sydney Bricklaying Construction Pty Ltd, which was referred to in the evidence as “Sydney Bricklaying”, terminology I will adopt) on a building site occupied and controlled by the first defendant (to which I will refer as “Dyldam”). The precise date of the events said to give rise to the plaintiff’s claim is a matter of some contention, which I will discuss below. The plaintiff pleaded that they occurred on 20 February 2003.

2…

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 Jones v Dyldam Developments Pty Ltd

Details

AGLC: Jones v Dyldam Developments Pty Ltd [2007] NSWSC 754
Case: [2007] NSWSC 754
Decision Date: 13 July 2007

CaseChat Overview and Summary

The case of Jones v Dyldam Developments Pty Ltd involved the plaintiff, Mr Jones, who suffered a personal injury while working as a bricklayer's labourer. He sued the two defendants, Dyldam Developments Pty Ltd and another company, for damages arising from the incident. The plaintiff claimed damages for permanent incapacity, and the court had to determine the apportionment of liability between the defendants. The plaintiff's claims against the first defendant included non-economic loss, past and future out-of-pocket expenses, past wage loss, past loss of superannuation, future wage loss, future loss of superannuation, and past and future domestic assistance. Against the second defendant, the plaintiff sought damages for past and future economic loss.

The legal issues that the court had to decide were primarily related to the existence and scope of the duty of care owed by the defendants to the plaintiff, the assessment of damages, and the apportionment of liability between the defendants. The court also had to consider the admissibility and relevance of the medical evidence presented and the duty of legal representatives regarding the excessive material tendered. The court's task was to determine the extent of the plaintiff's injuries, the causative link between the defendants' actions and the plaintiff's injuries, and the appropriate amount of damages to be awarded.

The court held that the first defendant owed a duty of care to the plaintiff and was liable for the plaintiff's injuries. The court assessed the damages, taking into account the evidence presented and the relevant legal principles. The court found that the plaintiff was entitled to compensation for non-economic loss, past and future out-of-pocket expenses, past wage loss, past loss of superannuation, future wage loss, future loss of superannuation, and past and future domestic assistance. The court also determined that the second defendant was liable for past and future economic loss. The court apportioned liability between the defendants and awarded damages accordingly. The court further held that the costs incurred due to excessive material tendered were not recoverable.

In conclusion, the court found in favour of the plaintiff and awarded damages against both defendants. The court determined the appropriate amount of damages based on the evidence and the applicable legal principles. The court also apportioned liability between the defendants and provided guidance on the recoverability of costs in cases involving excessive material tendered.

Orders