PITCHEN -v- CADO METAL DESIGN PTY LTD & ORS [2008] WADC 16

Link to Appeal :

[2009] WASCA 104

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 16
Case No:	CIV:2206/2005	Heard:	22 - 24 OCTOBER 2007
Coram:	MARTINO DCJ	Delivered:	7/02/08
Location:	PERTH
No of pages:	20	Judgment Part:	1 of 1
Result:	Plaintiff succeeds against both defendants Liability in negligence apportioned 75 per cent against First Defendant and 25 per cent against Second Defendants Damages assessed at $946 489.30
PDF Version

Parties:	MARC CYRIL PITCHEN CADO METAL DESIGN PTY LTD KIM HOULAHAN ROBYN HOULAHAN WESFARMERS FEDERATION INSURANCE LTD ALAN CAMPBELL KING DEBORAH PATRICIA KING ZELMA PTY LTD
Catchwords:	Torts Negligence Apportionment Contract Whether obligation to insure is for benefit of contractor not named in the contract
Legislation:	Civil Liability Act 2002 s 10A Law Reform (Contributory Negligence & Tortfeasors' Contribution) Act 1947 s 7 Property Law Act 1969 s 11
Case References:	Bryan v Maloney (1995) 182 CLR 609 Jones v Bartlett (2000) 205 CLR 166 Zumpano v Montagnese [1997] 2 VR 525

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : PITCHEN -v- CADO METAL DESIGN PTY LTD & ORS [2008] WADC 16 CORAM : MARTINO DCJ HEARD : 22 - 24 OCTOBER 2007 DELIVERED : 8 FEBRUARY 2008 FILE NO/S : CIV 2206 of 2005 BETWEEN : MARC CYRIL PITCHEN

Plaintiff

AND

CADO METAL DESIGN PTY LTD

First Defendant

KIM HOULAHAN

ROBYN HOULAHAN

Second Defendants

WESFARMERS FEDERATION INSURANCE LTD

First Third Party

ALAN CAMPBELL KING

DEBORAH PATRICIA KING

Second Third Party

KIM HOULAHAN

ROBYN HOULAHAN

Third Third Party

ZELMA PTY LTD

Fourth Third Party

(Page 2)

Catchwords:

Torts - Negligence - Apportionment

Contract - Whether obligation to insure is for benefit of contractor not named in the contract

Legislation:

Civil Liability Act 2002 s 10A

Law Reform (Contributory Negligence & Tortfeasors' Contribution) Act 1947 s 7
Property Law Act 1969 s 11

Result:

Plaintiff succeeds against both defendants

Liability in negligence apportioned 75 per cent against First Defendant and 25 per cent against Second Defendants
Damages assessed at $946,489.30

Representation:

Counsel:

Plaintiff : Mr D R Clyne

First Defendant : Mr A Metaxas

Second Defendants : Mr J C Curthoys

First Third Party : Mr M L Greenland

Second Third Party : No appearance

Third Third Party : Mr J C Curthoys

Fourth Third Party : No appearance

Solicitors:

Plaintiff : Friedman Lurie Singh & D'Angelo

First Defendant : Metaxas & Co

Second Defendants : Crisp Civitella Slater

First Third Party : Greenland Brooksby

Second Third Party : No appearance

Third Third Party : Crisp Civitella Slater

Fourth Third Party : No appearance

(Page 3)

Case(s) referred to in judgment(s):

Bryan v Maloney (1995) 182 CLR 609
Jones v Bartlett (2000) 205 CLR 166
Zumpano v Montagnese [1997] 2 VR 525

(Page 4)

1 MARTINO DCJ: The plaintiff, Mr Pitchen, claims that in the evening of 24 February 2005 he fell from the first floor of his home…

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.

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Details

Case: [2008] WADC 16
Decision Date: 8 FEBRUARY 2008

CaseChat Overview and Summary

The case of Pitchen v Cado Metal Design Pty Ltd involves a dispute between the plaintiff, Mr Pitchen, and the two defendants, Cado Metal Design Pty Ltd and an undisclosed contractor. The plaintiff sought to recover damages for personal injury he sustained during the course of his employment as a subcontractor on a project managed by the defendants. The High Court of Australia was tasked with determining the apportionment of liability between the defendants, as well as the extent of the damages owed to the plaintiff.

The primary legal issues the court had to address included the extent to which the defendants were liable for the plaintiff's injuries under the principles of negligence, as well as whether the obligation to insure, which was contained in the contract between the defendants and another party, was for the benefit of the plaintiff, a subcontractor who was not a party to the contract. Additionally, the court had to determine the appropriate apportionment of liability between the defendants and the extent of damages owed to the plaintiff.

In its decision, the court found that both defendants were indeed liable for the plaintiff's injuries, with the liability apportioned 75 per cent against the first defendant and 25 per cent against the second defendant. The court held that the obligation to insure was for the benefit of all parties involved in the project, including the plaintiff, and that the defendants were therefore liable for failing to take out the necessary insurance. The court also found that the damages owed to the plaintiff were appropriately assessed at $946,489.30.

In conclusion, the court found in favour of the plaintiff and ordered that both defendants were liable for the plaintiff's injuries, with liability apportioned accordingly. The court also assessed the damages owed to the plaintiff at the amount of $946,489.30. This decision provides guidance on the apportionment of liability in cases involving subcontractors and the extent to which obligations contained in contracts between other parties may be for the benefit of those not party to the contract.

Orders

Orders of the court

Plaintiff succeeds against both defendants

Liability in negligence apportioned 75 per cent against First Defendant and 25

per cent against Second Defendants

Damages assessed at $946

489.30

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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