Parkview Constructions Pty Ltd v Abrahim

Case [2013] NSWCA 460

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460
Hearing dates:28, 29 November 2013
Decision date: 20 December 2013
Before: McColl JA at [1]
Gleeson JA at [2]
Sackville AJA at [3]
Decision:

1. The appeal by Parkview Constructions Pty Ltd ("Parkview") in CA 2012/400220 be allowed in part.

2. The appeal by Erect Safe Scaffolding (Australia) Pty Ltd ("Erect Safe") in CA 2012/386915 be allowed in part.

3. The cross-appeal by Mr Abrahim in CA 2012/400220 be allowed.

4. The cross-appeal by Blue Star Painting Solutions Pty Ltd be allowed in part.

5. Set aside Orders 1, 3, 4, 5, 6, 7 and 8 made by Adams J on 23 November 2012.

6. Set aside the order made by Adams J on 19 February 2013.

7. Direct the parties to file agreed short minutes of order on or before 31 January 2014

(a) specifying the amount of the verdict and judgment to be entered in favour of Mr Abrahim against each of Parkview, Erect Safe and Blue Star;

(b) specifying the orders that should be made in lieu of the orders set aside by Order 5 above;

(c) specifying the costs orders that should be made.

8. If the parties cannot agree on the matters identified in Order 7(a) and (b):

(a) Parkview, Erect Safe and Blue Star are to file and serve their proposed short minutes of orders and brief written submissions in support on or before 31 January 2014;

(b) Mr Abrahim is to file and serve his proposed short minutes of order and brief submissions in support on or before 14 February 2014.

[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 - personal injury - scaffolding rendered unsafe by act of third party - whether scaffolder breached its duty of care in constructing scaffolding - whether principal contractor failed to conduct adequate inspections - whether plaintiff's employer negligent in failing to warn of risk - whether primary Judge's assessment of economic loss excessive
Legislation Cited: Civil Liability Act 2002, ss 5B, 5C, 5D, 5E, 13
Law Reform (Miscellaneous Provisions) Act 1946, s 5
Statute Law (Miscellaneous Provisions) Act 2012, Sch 2.7
Workers Compensation Act 1987, s 151Z
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100
British Fame (Owners) v MacGregor (Owners) [1943] AC 197
Cregan Hotel Management Pty Ltd v Hadaway [2011] NSWCA 338
De Sales v Ingrilli [2002] HCA 52; 212 CLR 338
Dovuro Pty Ltd v Wilkins…

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Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460
Case
[2013] NSWCA 460
Decision Date

CaseChat Overview and Summary

In the New South Wales Court of Appeal, Parkview Constructions Pty Ltd and Erect Safe Scaffolding (Australia) Pty Ltd appealed against a decision of the primary judge concerning liability for personal injuries sustained by Mr Abrahim. Mr Abrahim, a painter, fell from scaffolding erected by Erect Safe on a construction site managed by Parkview, suffering serious injuries. Mr Abrahim also sued his employer, Blue Star Painting Solutions Pty Ltd. The primary judge found Parkview and Erect Safe negligent but dismissed the claim against Blue Star, and found no contributory negligence on Mr Abrahim's part. The appeals and cross-appeals concerned the findings of negligence, the apportionment of responsibility between the parties, and the assessment of economic loss.

The central legal issues before the Court of Appeal included whether Parkview and Erect Safe had breached their respective duties of care in the construction and inspection of the scaffolding, and whether the primary judge erred in failing to find Blue Star negligent. Further issues involved the apportionment of liability between Parkview and Erect Safe, and the quantum of economic loss awarded to Mr Abrahim. The appellants also contended that the primary judge failed to apply the relevant provisions of the Civil Liability Act 2002 when making findings of negligence.

The Court of Appeal allowed the appeals by Parkview and Erect Safe in part, and allowed the cross-appeals by Mr Abrahim and Blue Star in part. The court set aside the primary judge's orders regarding liability and damages. The parties were directed to file agreed short minutes of order specifying the amount of the verdict and judgment to be entered in favour of Mr Abrahim against each of Parkview, Erect Safe, and Blue Star, and detailing the consequential orders. If agreement could not be reached, the parties were to file proposed minutes and submissions within specified timelines.

Orders

Orders of the court

1. The appeal by Parkview Constructions Pty Ltd ("Parkview") in CA 2012/400220 be allowed in part.

2. The appeal by Erect Safe Scaffolding (Australia) Pty Ltd ("Erect Safe") in CA 2012/386915 be allowed in part.

3. The cross-appeal by Mr Abrahim in CA 2012/400220 be allowed.

4. The cross-appeal by Blue Star Painting Solutions Pty Ltd be allowed in part.

5. Set aside Orders 1, 3, 4, 5, 6, 7 and 8 made by Adams J on 23 November 2012.

6. Set aside the order made by Adams J on 19 February 2013.

7. Direct the parties to file agreed short minutes of order on or before 31 January 2014

(a) specifying the amount of the verdict and judgment to be entered in favour of Mr Abrahim against each of Parkview, Erect Safe and Blue Star;

(b) specifying the orders that should be made in lieu of the orders set aside by Order 5 above;

(c) specifying the costs orders that should be made.

8. If the parties cannot agree on the matters identified in Order 7(a) and (b):

(a) Parkview, Erect Safe and Blue Star are to file and serve their proposed short minutes of orders and brief written submissions in support on or before 31 January 2014;

(b) Mr Abrahim is to file and serve his proposed short minutes of order and brief submissions in support on or before 14 February 2014.

[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

In a second judgment, his Honour directed that Erect Safe was to pay sixty per cent and Parkview forty per cent of the judgment sum awarded to Mr Abrahim: Abrahim v Parkview Constructions Pty Ltd(No 2) [2013] NSWSC 95 ("Judgment No 2"). Each of Erect Safe and Parkview challenges the apportionment of responsibility. Other issues are raised by cross-appeals, to which I refer later. Mr Abrahim was injured while working as a painter on a building site at Greenwich, on which a large residential complex was being constructed. The accident occurred at about 8:15am on Monday, 2 April 2007. Mr Abrahim fell when a metal plank on a three-board "hop-up" platform, attached to a scaffolding framework, gave way as he stepped on to it. Unfortunately, the result was that Mr Abrahim fell in excess of ten metres and sustained serious injuries. Mr Abrahim sued Parkview, the head contractor on the construction site; Erect Safe, the scaffolding subcontractor engaged by Parkview, which was responsible for erecting the scaffolding; and Blue Star, Mr Abrahim's employer. The primary Judge found that each of Parkview and Erect Safe had been negligent but, as I have noted, his Honour dismissed Mr Abrahim's claim against Blue Star. The primary Judge also found that Mr Abrahim had not been contributorily negligent and there is no challenge to that finding. In this Court, Erect Safe challenges the finding of negligence made against it and seeks an order that judgment be entered in its favour against Mr Abrahim. Alternatively, Erect Safe seeks to reduce its share of responsibility for Mr Abrahim's injuries both by increasing Parkview's share of responsibility and by challenging the finding that Blue Star was not negligent. Erect Safe also contends that the allowance for economic loss in the damages award was excessive and should be reduced. Parkview's notice of appeal mirrors that of Erect Safe. Parkview challenges the finding of negligence made against it or, alternatively, seeks to reduce its share of responsibility. It, too, challenges the allowance for economic loss in the damages award. Blue Star has filed a notice of cross-appeal challenging the allowance for economic loss in the assessment of Mr Abrahim's damages. Blue Star has done so to cover the possibility that the appeals will succeed in overturning the primary Judge's finding that Blue Star was not negligent and accordingly, that it will be liable to contribute to Mr Abrahim's damages. Although Mr Abrahim was not found to have been contributorily negligent, he has also filed a notice of cross-appeal, contending that his Honour erred in failing to find that Blue Star had been negligent. Mr Abrahim's cross-appeal was no doubt filed out of an abundance of caution, since a finding that Blue Star (Mr Abrahim's employer) was partially responsible for Mr Abrahim's injuries would produce a reduction in his overall damages: see Workers Compensation Act 1987, s 151Z. The appellants complain that his Honour failed to have regard to the relevant provisions of the Civil Liability Act 2002 ("CL Act") when making a finding of negligence against them. It is therefore convenient to set out those provisions in force at the relevant time:

Ratio Decidendi

Legal Principle Established

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