Marketform Managing Agency Ltd for and on behalf of the Underwriting Members of Syndicate 2468 for the 2009 Year of Account v Ashcroft Supa IGA Orange Pty Ltd

Marketform Managing Agency Ltd (for and on behalf of the Underwriting Members of Syndicate 2468 for the 2009 Year of Account) appealed to the Court of Appeal of New South Wales against a decision concerning liability for injuries sustained by an apprentice worker, Mr Paul. Mr Paul was employed by a third party and was injured while working at premises operated by Ashcroft Supa IGA Orange Pty Ltd. The dispute centred on whether Ashcroft was liable for Mr Paul's injuries, and whether Marketform, as Ashcroft's insurer, was obligated to indemnify Ashcroft under a policy that contained an exclusion clause.

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether Ashcroft owed Mr Paul a non-delegable duty of care, despite Mr Paul being employed by a third party. Secondly, the court needed to assess the extent of any contributory negligence on Mr Paul's part. Thirdly, the court was tasked with interpreting an exclusion clause in Marketform's policy, specifically whether it excluded liability for injury to a person engaged under a contract for the provision of labour only services to the insured. Finally, the court had to consider the apportionment of responsibility and damages pursuant to s 151Z of the *Workers Compensation Act 1987* (NSW).

The Court of Appeal reasoned that Ashcroft owed Mr Paul a non-delegable duty of care, as the work being performed was inherently dangerous. The court found that while Mr Paul was contributorily negligent to some extent, his actions did not fully absolve Ashcroft of its responsibility. Regarding the insurance policy, the court determined that the exclusion clause did not apply to Mr Paul's situation, as his engagement was not solely for labour only services. Consequently, the appeal by Marketform was dismissed, and the cross-appeal by Ashcroft was allowed. The primary judge's orders were set aside, and new orders were made apportioning liability and directing payment of damages between Mr Paul and Ashcroft, and between Ashcroft and Marketform.