Lipman Pty Ltd v McGregor - [2004] NSWCA 6

CITATION: Lipman Pty Ltd v McGregor & Ors [2004] NSWCA 6

HEARING DATE(S): 04/02/04

JUDGMENT DATE:
15 March 2004

JUDGMENT OF: Sheller JA; Santow JA; Gzell J

DECISION: Appeal dismissed with costs.

CATCHWORDS: PROCEDURE - Courts and judges generally - A judge's failure to mention insignificant evidence in reasons for judgment is not error - TORTS - Negligence - Employer subcontractor not in breach of non-delegable duty of care when employee injured by negligence of head contractor - CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Indemnity of head contractor by employer subcontractor against liability in respect of personal injury arising out of Works - Works defined as erection and dismantling of scaffolding - Injury sustained when stairs erected by head contractor collapsed - Injury not arising out of Works

LEGISLATION CITED: Workers Compensation Act 1987

CASES CITED: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Mifsud v Campbell (1991) 21 NSWLR 725
Fox v Percy (2003) 77 ALJR 989
TNT Australia Pty Ltd v Christie [2003] NSWCA 47
Davis v Commissioner for Main Roads (1967-1968) 117 CLR 529
Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd (1995) 8 ANZ Insurance Cases 61-235
State Government Insurance Office (Q) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228

PARTIES :
Lipman Pty Ltd - Applicant
Robert McGregor - 1st Respondent
Constructor Scaffolding Pty Ltd - 2nd Respondent
GIO Workers Compensation (NSW) Ltd - 3rd Respondent

FILE NUMBER(S): CA 40165/03

COUNSEL: Mr A C A Bridge SC - For the Applicant
Mr DT Kennedy SC/ Mr M A Kumar - 1st Respondent
Mr P Morris - 3rd Respondent

SOLICITORS: Hunt & Hunt Solicitors - Applicant
Taylor & Scott - 1st Respondent
Leitch Hasson Dent - 3rd Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 9700/00

LOWER COURT
JUDICIAL OFFICER : Patten DCJ

40165/03

SHELLER JA
SANTOW JA
GZELL J

MONDAY 15 MARCH 2004

LIPMAN PTY LTD v ROBERT MCGREGOR & ORS

Judgment

1 SHELLER JA: I agree with Gzell J.

2 SANTOW JA: I agree with Gzell J.

3 GZELL J: The appellant was the head contractor for a multi-storey residential unit development. The first respondent was injured on the building site. He was an employee of the second respondent which had subcontracted to provide scaffolding works. The third respondent was the second respondent’s workers compensation insurer.

4 The second respondent took no part in the proceedings before Patten DCJ and took no part in the appeal. His Honour found the appellant liable in tort for the first respondent’s injuries and found the second respondent had not breached its duty of care to its employee. His Honour also rejected a claim by the appellant against the second respondent under an indemnity clause in the subcontract. In consequence, the appellant also failed against the third respondent.

5 The first respondent worked under the supervision of Mr Knight, another employee of the second…

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 Lipman Pty Ltd v McGregor

Details

AGLC: Lipman Pty Ltd v McGregor [2004] NSWCA 6
Case: [2004] NSWCA 6
Decision Date: 15 March 2004

CaseChat Overview and Summary

Lipman Pty Ltd appealed to the New South Wales Court of Appeal against a decision of the primary judge concerning liability for personal injuries sustained by Mr McGregor. Mr McGregor, an employee of a subcontractor engaged by Lipman Pty Ltd (the head contractor), was injured when stairs erected by Lipman collapsed. The dispute centred on whether Lipman owed Mr McGregor a non-delegable duty of care and whether an indemnity clause in the subcontract extended to the liability in question.

The Court of Appeal was required to determine whether Lipman Pty Ltd, as the head contractor, had breached a non-delegable duty of care owed to Mr McGregor, an employee of a subcontractor. Further, the Court had to consider whether an indemnity clause within the subcontract, which purported to indemnify Lipman against liability for personal injury arising out of the "Works," encompassed the injury sustained by Mr McGregor. The definition of "Works" in the subcontract was crucial to this determination.

The Court held that Lipman Pty Ltd was not in breach of any non-delegable duty of care. It reasoned that the injury sustained by Mr McGregor did not arise out of the "Works" as defined in the subcontract, which specifically referred to the erection and dismantling of scaffolding. The collapse of the stairs, erected by Lipman, was found not to fall within this definition. Consequently, the indemnity clause, which was limited to liabilities arising out of the Works, did not extend to cover the injury suffered by Mr McGregor. The Court also noted that a judge's failure to mention insignificant evidence in their reasons for judgment does not constitute an error.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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

Full text does not contain this section.

CITATION:	Lipman Pty Ltd v McGregor & Ors [2004] NSWCA 6
HEARING DATE(S):	04/02/04
JUDGMENT DATE:	15 March 2004
JUDGMENT OF:	Sheller JA; Santow JA; Gzell J
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	PROCEDURE - Courts and judges generally - A judge's failure to mention insignificant evidence in reasons for judgment is not error - TORTS - Negligence - Employer subcontractor not in breach of non-delegable duty of care when employee injured by negligence of head contractor - CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Indemnity of head contractor by employer subcontractor against liability in respect of personal injury arising out of Works - Works defined as erection and dismantling of scaffolding - Injury sustained when stairs erected by head contractor collapsed - Injury not arising out of Works
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Mifsud v Campbell (1991) 21 NSWLR 725 Fox v Percy (2003) 77 ALJR 989 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 Davis v Commissioner for Main Roads (1967-1968) 117 CLR 529 Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd (1995) 8 ANZ Insurance Cases 61-235 State Government Insurance Office (Q) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228
PARTIES :	Lipman Pty Ltd - Applicant Robert McGregor - 1st Respondent Constructor Scaffolding Pty Ltd - 2nd Respondent GIO Workers Compensation (NSW) Ltd - 3rd Respondent
FILE NUMBER(S):	CA 40165/03
COUNSEL:	Mr A C A Bridge SC - For the Applicant Mr DT Kennedy SC/ Mr M A Kumar - 1st Respondent Mr P Morris - 3rd Respondent
SOLICITORS:	Hunt & Hunt Solicitors - Applicant Taylor & Scott - 1st Respondent Leitch Hasson Dent - 3rd Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	9700/00
LOWER COURT JUDICIAL OFFICER :	Patten DCJ