Kolodziejczyk v Grandview Pty Ltd - [2002] NSWCA 267

Reported Decision:
(2002) Aust Torts Reports 81-673

New South Wales

Court of Appeal

CITATION: Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267

FILE NUMBER(S): CA 40895/01

HEARING DATE(S): 9 July 2002

JUDGMENT DATE:
14 August 2002

PARTIES :

Marek Kolodziejczyk (Appellant)
Grandview Pty Ltd (Respondent)

JUDGMENT OF: Heydon JA at 1; Ipp AJA at 96; Davies AJA at 97

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 7743/00

LOWER COURT
JUDICIAL OFFICER : Nash ADCJ

COUNSEL: Mr A D M Hewitt SC/Mr R A Stanton (Appellant)
Mr H J Marshall (Respondent)

SOLICITORS: Marsdens Law Group (Appellant)
Dexter Healey (Respondent)

CATCHWORDS: Tort - negligence - duty of care - plaintiff subcontractor to defendant - plaintiff engaged to install wall cladding - where plaintiff fell from unsecured ladder in course of installation - whether defendant under duty of care to ensure plaintiff's safety - breach - causation - Contract - implied term - whether contract contained implied term not to commit tort of negligence - Tort - breach of statutory duty - industrial safety legislation - Construction Safety Regulations 1950 Regulations 73 and 74 - whether facts disclosed duty - whether facts disclosed breach - D

LEGISLATION CITED: Construction Safety Act 1912 (NSW)

CASES CITED:
Almeida v Universal Dye Works Pty Limited (2001) Aust Torts Reports 81-603
H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65
O'Connor v Commissioner of Government Transport (1954) 100 CLR 225
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25
Zahner v Andreas Pty Ltd [2001] NSWCA 352

DECISION: The appeal is dismissed; the appellant is to pay the respondent's costs of the appeal.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40895/01
DC 7743/00

HEYDON JA
IPP AJA
DAVIES AJA

14 August 2002

KOLODZIEJCZYK v GRANDVIEW PTY LTD

The plaintiff and his business partner frequently worked for the defendant as subcontractors to install roof cladding on houses. On the occasion in question, the plaintiff fell from an unsecured ladder leaning against a house on which he was installing roof cladding. He suffered physical injuries and brought actions in tort for negligence and breach of statutory duty under the Construction Safety Regulations 1950 Regulations 73 and 74, and in contract for breach of an implied term not to commit the tort of negligence. The trial judge entered a verdict for the defendant, finding that: (1) the defendant owed no duty of care to the plaintiff to ensure the plaintiff’s safety; (2) even assuming a duty of care, breach was not established; (3) even assuming duty of care and breach, causation was not established; (4) no implied contractual term to ensure the plaintiff’s safety or to comply with the law existed or was breached; and (5) no statutory duty to the…

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: [2002] NSWCA 267
Decision Date: 14 August 2002

CaseChat Overview and Summary

Kolodziejczyk v Grandview Pty Ltd concerned an appeal to the Court of Appeal of New South Wales regarding a claim for damages for personal injury. The appellant, a subcontractor engaged by the respondent to install wall cladding, suffered injuries when he fell from an unsecured ladder. The appellant alleged that the respondent owed him a duty of care, which had been breached, and that the contract contained an implied term not to commit the tort of negligence. Additionally, the appellant argued that the respondent had breached statutory duties imposed by the Construction Safety Regulations 1950.

The central legal issues before the Court of Appeal were whether the respondent owed a duty of care to the appellant to ensure his safety whilst working on the respondent's premises, whether this duty had been breached, and whether the respondent had breached its statutory obligations under the Construction Safety Regulations 1950. The court also considered whether the contract between the parties contained an implied term that the respondent would not commit the tort of negligence.

The court found that the respondent did not owe a duty of care to the appellant in negligence, nor was there a breach of statutory duty. The court reasoned that the appellant, as an experienced subcontractor, was responsible for his own safety and the means by which he carried out his work. The contractual arrangements placed the responsibility for safe working practices on the subcontractor. The court also determined that the Construction Safety Regulations did not impose a duty on the respondent in the circumstances of this case.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

The appeal is dismissed; the appellant is to pay the respondent's costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267
FILE NUMBER(S):	CA 40895/01
HEARING DATE(S):	9 July 2002
JUDGMENT DATE:	14 August 2002
PARTIES :	Marek Kolodziejczyk (Appellant) Grandview Pty Ltd (Respondent)
JUDGMENT OF:	Heydon JA at 1; Ipp AJA at 96; Davies AJA at 97

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7743/00
LOWER COURT JUDICIAL OFFICER :	Nash ADCJ

COUNSEL:	Mr A D M Hewitt SC/Mr R A Stanton (Appellant) Mr H J Marshall (Respondent)
SOLICITORS:	Marsdens Law Group (Appellant) Dexter Healey (Respondent)
CATCHWORDS:	Tort - negligence - duty of care - plaintiff subcontractor to defendant - plaintiff engaged to install wall cladding - where plaintiff fell from unsecured ladder in course of installation - whether defendant under duty of care to ensure plaintiff's safety - breach - causation - Contract - implied term - whether contract contained implied term not to commit tort of negligence - Tort - breach of statutory duty - industrial safety legislation - Construction Safety Regulations 1950 Regulations 73 and 74 - whether facts disclosed duty - whether facts disclosed breach - D
LEGISLATION CITED:	Construction Safety Act 1912 (NSW)
CASES CITED:	Almeida v Universal Dye Works Pty Limited (2001) Aust Torts Reports 81-603 H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 O'Connor v Commissioner of Government Transport (1954) 100 CLR 225 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 Zahner v Andreas Pty Ltd [2001] NSWCA 352
DECISION:	The appeal is dismissed; the appellant is to pay the respondent's costs of the appeal.