Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96 Hearing dates: 28 November 2011 Decision date: 20 April 2012 Before: Bathurst CJ at [1]
McColl JA at [2]
Whealy JA at [3]Decision: (1) Appeal dismissed.
(2) The appellant to pay the respondent's costs of this appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: NEGLIGENCE - Appeal - duty of care - whether an occupier of a building site owes a duty to provide safe means of access to sub-contractors of independent contractors on a public road - relevance of Codes of Practice to finding common law duty of care - Leighton Contractors v Fox - Stevens v Brodribb Sawmilling Co Pty Ltd.
NEGLIGENCE - Appeal - breach of duty of care - discharge of a duty of care by retaining a competent independent contractor - meaning of "access" in clause 73(2) Construction Safety Regulations 1950 - how breach of a regulation bears on breach of a duty of care.
NEGLIGENCE - Appeal - damages - method of assessing lost earnings.Legislation Cited: - Code of Practice - Pumping Concrete 1994
- Construction Safety Act 1912 (NSW) - s 3
- Construction Safety Regulations 1950 (NSW) - Reg 73(2)
- Factories, Shops and Industries Act 1962 (repealed)
- Occupational Health and Safety Act 2000 (NSW) - s 44A, s 46(2)
- Roads Act 1993 (NSW)
- Supreme Court Act 1970 (NSW) - s 75A(7)
- Uniform Civil Procedure Rules 2005 (NSW) - r 51.36Cases Cited: - ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372
- Akins v National Australia Bank (1994) 34 NSWLR 155
- Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26, 221 CLR 568
- Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305
- Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479
- Ballina Shire Council v Daley [1991] NSWCA 18
- J. Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157
- Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317
- Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12
- Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, 243 CLR 361
- Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1
- Normoyle Pty Ltd, F & D v Transfield Pty Ltd t/as Transfield Bouygues Joint Venture and Anor; Transfield Pty Ltd t/as Transfield Bouygues Joint Venture and Anor v Z Vranjkovic & Ors [2005] NSWCA…
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- AGLC
- Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96
- Case
- [2012] NSWCA 96
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether an occupier of a construction site owes a common law duty of care to provide safe access to individuals like the appellant, who were not directly employed by the occupier but were present on a public road in connection with the site. Secondly, the Court had to assess the relevance of Codes of Practice, such as those issued under the *Construction Safety Regulations 1950*, to the existence and scope of such a common law duty of care, particularly in light of established authorities like *Leighton Contractors v Fox* and *Stevens v Brodribb Sawmilling Co Pty Ltd*. Thirdly, the Court considered whether any such duty, if it existed, had been breached, and whether the duty could be discharged by engaging a competent independent contractor. Finally, the Court had to determine the appropriate method for assessing damages for lost earnings.
In its reasoning, the Court of Appeal affirmed that an occupier of a building site can owe a duty of care to persons on an adjacent public road if there is a foreseeable risk of injury arising from the activities on the site. The Court found that the occupier had a duty to take reasonable steps to ensure the safety of access to the site, even for those on a public road, and that this duty was not necessarily discharged by the engagement of an independent contractor. The Court also considered the meaning of "access" within the context of the *Construction Safety Regulations 1950*, noting that a breach of a regulation could be relevant to establishing a breach of a common law duty of care. The Court applied principles of negligence, focusing on the foreseeability of harm and the reasonableness of the steps taken to prevent it.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
(1) Appeal dismissed.
(2) The appellant to pay the respondent's costs of this appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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