Leighton Contractors Pty Ltd v Smith

Case [2000] NSWCA 55

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Leighton Contractors Pty Ltd v Rodney James Smith anor [2000]  NSWCA 55 revised - 29/02/2008

FILE NUMBER(S):
40498/98

HEARING DATE(S):               17 February 2000

JUDGMENT DATE: 19/04/2000

PARTIES:
Appellant: Leighton Contractors Pty Limited
1st Respondent: Rodney James Smith
2nd respondent: B&B Detail Joinery Manufactuers Pty Ltd

JUDGMENT OF:       Mason P Meagher JA Fitzgerald JA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          SC 182/93

LOWER COURT JUDICIAL OFFICER:     Studdert J

COUNSEL:
Appellant: B Toomey QC / M McAuley
1st Respondent: C Calloway QC / R Taperell
2nd Respondent: J Hislop QC / J Lonergan

SOLICITORS:
Appellant: John Sharpe HIH Workers' Compensation (NSW) Pty Limited Sydney
1st Respondent: Baker & Love Solicitors (Charlestown)
2nd Respondent: Dunhill Madden Butler Sydney

CATCHWORDS:
Negligence
workplace injury
quantum of damages
declaration as to indemnity of employer
Workers compensation Act 1987 (NSW)
Construction Safety Act 1912 (NSW)

LEGISLATION CITED:
Workers Compensation Act 1987 (NSW)

DECISION:
1. Appeal against the dismissal of Leighton's claim for indemnity by B&B allowed with costs.
2.Declaration that Leighton is entitled to indemnity by B&B in respect of Leighton's liability to Smith.
3. Leighton's appeal and application for leave to appeal dismissed.
4. Application by Smith to strike out Leighton's appeal dismissed.
5. Application by Smith for leave to appeal in relation to damages awarded from B&B be dismissed.

JUDGMENT:

LEIGHTON CONTRACTORS PTY LIMITED V Rodney James SMITH & ANOR

NEGLIGENCE-WORKPLACE INJURY-QUANTUM OF DAMAGES-DECLARATION AS TO INDEMNITY OF EMPLOYER-WORKERS COMPENSATION ACT 1987 (NSW)-CONSTRUCTION SAFETY ACT 1912 (NSW)

Facts: Smith was employed by Leighton Contractors Pty Limited ("Leighton"). On the day he was injured he was working for a subcontractor, B&B Detailed Joinery Manufacturers Pty Limited ("B&B"). Smith joined Leighton and B&B as defendants. He brought action against them for failing to provide a safe system of work, and for breach of the Construction Safety Act 1912 (NSW).

At the trial, Leighton and B&B presented evidence and defences jointly. Leighton sought a declaration that it was entitled to an indemnity from B&B. This was refused by the trial judge. The jury found for Smith. They awarded 65% against Leighton and ' 35% against B&B.

Leighton appeals against this finding on the following grounds:

  1. The subcontracting contract stated that B&B was to fully indemnify Leighton against any loss or damage. This included the full amount awarded against Leighton at the trial.

  2. The jury assessment of damages against Leighton, as against B&B, was excessive given S151Z Worker 's Compensation Act 1987.

  3. The jury failed to assess damages against Leighton with regard to Division 3 of Part 5 Worker's Compensation Act 1987.

  4. The damages awarded against Leighton for non-economic loss were excessive. There was a cross appeal by Smith on the quantum of damages awarded, which would only proceed if Leighton was successful in its appeal against B&B.

Held: per Meagher JA: There is nothing stopping an appellate court from acting on what appears to be an irrational verdict of a jury. Under…

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AGLC
Leighton Contractors Pty Ltd v Smith [2000] NSWCA 55
Case
[2000] NSWCA 55
Decision Date

CaseChat Overview and Summary

Leighton Contractors Pty Ltd (Leighton) appealed to the Supreme Court of New South Wales, Court of Appeal, against the dismissal of its claim for indemnity against B&B Constructions Pty Ltd (B&B). The underlying dispute concerned a workplace injury sustained by Mr. Smith, an employee of B&B, who was working on a construction site managed by Leighton. Leighton had been found liable to Mr. Smith for damages arising from this injury.

The primary legal issues before the Court of Appeal were whether Leighton was entitled to an indemnity from B&B in respect of Leighton's liability to Mr. Smith, and whether the trial judge had erred in dismissing Leighton's claim for indemnity. The Court also considered various applications for leave to appeal and appeals by Mr. Smith and Leighton concerning the quantum of damages and the indemnity claim.

The Court of Appeal found that the trial judge had erred in dismissing Leighton's claim for indemnity. Applying principles of contractual indemnity and the implied duty of a sub-contractor to perform work with due care and skill, the Court determined that B&B, as the sub-contractor, owed a duty to Leighton to ensure that the work was carried out safely. Given that Mr. Smith's injury arose from a breach of this duty by B&B, Leighton was entitled to be indemnified by B&B for the damages it was liable to pay Mr. Smith.

Consequently, the Court of Appeal allowed Leighton's appeal against the dismissal of its indemnity claim, declaring that Leighton was entitled to indemnity from B&B. Leighton's other appeals and applications for leave to appeal were dismissed, as were Mr. Smith's applications for leave to appeal.

Orders

Orders of the court

1. Appeal against the dismissal of Leighton's claim for indemnity by B&B allowed with costs.

2.Declaration that Leighton is entitled to indemnity by B&B in respect of Leighton's liability to Smith.

3. Leighton's appeal and application for leave to appeal dismissed.

4. Application by Smith to strike out Leighton's appeal dismissed.

5. Application by Smith for leave to appeal in relation to damages awarded from B&B be dismissed.

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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