Minogue v Rudd

Case [2013] NSWCA 345


Court of Appeal

New South Wales

Case Title: Minogue v Rudd
Medium Neutral Citation: [2013] NSWCA 345
Hearing Date(s): 10 and 11 September 2013
Decision Date: 22 October 2013
Before: Macfarlan JA at [1]
Hoeben JA at [79]
Emmett JA at [80]
Decision:

(1)Appeals and cross-appeals dismissed.

(2)Direct that the parties lodge written submissions concerning costs in accordance with the following timetable:

(a) The appellant within three working days of the date of this judgment.

(b) The respondent within three working days thereafter.

(c) The cross-respondent within three working days thereafter.

(d) Any replies by the appellant and the first respondent within three working days thereafter.

(3)Direct that the question of what costs orders should be made be determined upon the basis of the written submissions of the parties, without the necessity for a further oral hearing.

[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: TORTS - negligence - appellant carpenter injured when he fell through unfinished floor on building site - floor joists lacked one supporting strut - how and why appellant fell not established - causation of injuries by assumed negligence not established - whether builder negligent in not installing a temporary floor given that appellant was an experienced tradesperson
Legislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Cases Cited: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Condos v Clycut Pty Ltd [2009] NSWCA 200
Davis v Nolras Pty Ltd [2005] NSWCA 379
Ilvariy Pty Ltd t/as Craftsman Homes v Sijuk [2011] NSWCA 12
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Luxton v Vines [1952] HCA 19; 85 CLR 352 Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7
Shaw v Thomas [2010] NSWCA 169
Category: Principal judgment
Parties: Paul Timothy Minogue (Appellant)
David Jonathan Rudd t/as Rudd & Co Construction Pty Ltd (Respondent/Cross-Appellant/Second Cross-Respondent)
DMW Carpentry Services Pty Ltd (Cross-Respondent/Second Cross-Appellant)
Representation
- Counsel: Counsel:
B J Gross QC/R Harrington (Appellant)
G M Watson SC/D A Lloyd (Respondent/ Cross-Appellant/Second Cross-Respondent)
D Hooke SC/S Maybury (Cross-Respondent/Second Cross-Appellant)
- Solicitors: Solicitors:
Carroll & O'Dea (Appellant)
Wotton Kearney Lawyers (Respondent/ Cross-Appellant/Second Cross-Respondent)
Edwards Michael Lawyers (Cross-Respondent/Second Cross-Appellant)
File Number(s): CA 2012/149952
Decision Under Appeal
- Court / Tribunal: Supreme Court
- Before: Adamson J
- Date of Decision:  12 April 2012
- Citation: Minogue v Rudd [2012] NSWSC 305
- Court File Number(s): SC 2008/289464

JUDGMENT

  1. MACFARLAN JA:

SUMMARY OF CASE AND CONCLUSIONS

  1. At about 10.30 am on 12 February 2004 the appellant, then a young man from Ireland on a…

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Minogue v Rudd [2013] NSWCA 345
Case
[2013] NSWCA 345
Decision Date

CaseChat Overview and Summary

In *Minogue v Rudd*, the appellant, a carpenter, appealed a decision concerning injuries sustained when he fell through an unfinished floor on a building site. The floor joists lacked a supporting strut, but the precise manner and cause of the appellant's fall were not established. The respondent was the builder.

The central legal issues before the court were whether the builder was negligent in failing to install a temporary floor, and crucially, whether this negligence caused the appellant's injuries. The court also considered whether the appellant's experience as a tradesperson was relevant to the builder's duty of care.

The court found that while the absence of the supporting strut might have constituted negligence, the appellant had failed to establish causation. The lack of clarity regarding how the fall occurred meant it could not be proven that the builder's omission was the cause of the injuries. The court applied the principles of negligence, requiring proof of duty, breach, and causation. The appellant's experience did not alter the fundamental requirement to prove that the alleged breach of duty caused the harm.

The appeals and cross-appeals were dismissed. The parties were directed to lodge written submissions concerning costs.

Orders

Orders of the court

(1)Appeals and cross-appeals dismissed.

(2)Direct that the parties lodge written submissions concerning costs in accordance with the following timetable:

(a) The appellant within three working days of the date of this judgment.

(b) The respondent within three working days thereafter.

(c) The cross-respondent within three working days thereafter.

(d) Any replies by the appellant and the first respondent within three working days thereafter.

(3)Direct that the question of what costs orders should be made be determined upon the basis of the written submissions of the parties, without the necessity for a further oral hearing.

[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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