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Pritchard v Trius Constructions Pty Ltd

Pritchard v Trius Constructions Pty Ltd

Case [2011] NSWSC 749 20 July 2011

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Supreme Court

New South Wales

Medium Neutral Citation: PRITCHARD v TRIUS CONSTRUCTIONS PTY LIMITED & Ors [2011] NSWSC 749
Hearing dates: 4/7/2011, 5/7/2011, 6/7/ 2011, 7/7/ 2011
Decision date: 20 July 2011
Before: HOEBEN J
Decision:
Liability in tort apportioned 60 percent against Trius and 40 percent against Oceanic.
Oceanic's claim in contract against Trius fails.

Catchwords: TORT - negligence - workplace injury - employee of sub-contractor injured at colliery - responsibility of employer - responsibility of owner of colliery - apportionment of liability - CONTRACT - identifying terms of contract - what terms were implied in contract - whether implied terms breached - if breach of implied term whether damage too remote - whether standard terms and conditions of colliery owner formed part of contract - incorporation of terms in unsigned contract - indemnity clauses - whether sub-contractor required to indemnify owner of colliery - meaning of indemnity clauses.
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946
Workers Compensation Act 1987
Cases Cited: Andar Transport Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 at [17] - [23]
Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338 at [19]
Barrymores Pty Ltd v Harris Scarfe Ltd (Administrators Appointed) (Receivers and Managers Appointed) & Ors [2001] WASC 210
BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266
Burke v Hassett & Ors (1999) 1VR 189 at [41] - [42]
Byrne v Australian Airlines Limited (1995) HCA 24; (1995) 185 CLR 410 at 422
Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd (Receiver Appointed) (in Liq) (NSWSC, unreported, Cohen J, 3 August 1992)
Climax Management v Scansash [2002] NSWCA 167
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 at [12]
Hardwick Game Farms v S.A.P.P.A. (1969) 2 AC 31
Eggleston v Marley Engineers Pty Limited and BK and JG Mewett (1970) 21 SASR 51
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114
Florida Hotels Pty Limited v Mayo (1965) 113 CLR 588 at 598
Hawkins v Clayton (1988) HCA 15; (1988) 164 CLR 539 at 573
Hays Personnel Services (Australia) P/L v Motorline P/L [2008] QCA 375
Leighton Contractors Pty Limited v Fox [2009] HCA 35; (2009) 240 CLR 1 at [48]
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 said at 228-229
O'Connor v Commissioner of Government Transport (1965) 100 CLR 225 at 229-230
Oxley County Council v MacDonald & Ors; Brambles Holdings Limited v MacDonald & Ors [1999] NSWCA 126
Podrebersek v Australian Iron & Steel (1985) 59 ALJR 492 at [494]
Remath Investments No 6 Pty Ltd v Chanel (Australia) Pty Ltd [1992] NSWCA 208
Sinclair v William Arnott Pty Limited (No 2) (1953) 64 SR (NSW) 88 at 91-2 per Walsh J
Smith and Ors v South Wales Switchgear Limited [1978] 1 All ER 18
State of New South Wales v Tempo Services Ltd [2004] NSWCA 4
Toll (FGCT) Pty Ltd v Alphapharm Pty…

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.

Continue reading Pritchard v Trius Constructions Pty Ltd

Details

AGLC: Pritchard v Trius Constructions Pty Ltd [2011] NSWSC 749
Case: [2011] NSWSC 749
Decision Date: 20 July 2011

CaseChat Overview and Summary

In the case of Pritchard v Trius Constructions Pty Ltd, the plaintiff, an employee of a sub-contractor, sustained injuries at a colliery operated by the defendant, Trius Constructions. The dispute centred around the allocation of liability between Trius Constructions, as the owner of the colliery, and the sub-contractor, regarding the injuries incurred by the plaintiff. The matter was heard in the Supreme Court of Queensland.

The court had to determine several legal issues. Firstly, it needed to ascertain whether the sub-contractor, as an employer, owed a duty of care to the plaintiff. Secondly, it had to decide if the owner of the colliery, Trius Constructions, also owed a duty of care to the plaintiff. Thirdly, the court needed to apportion the liability between the parties if both owed a duty of care. Additionally, the court had to examine whether there was a breach of any implied terms in the contract between the sub-contractor and Trius Constructions, and if such a breach led to the injuries, whether the damages were too remote. The court also had to determine whether the standard terms and conditions of the colliery owner were part of the contract, whether these terms were incorporated into the unsigned contract, and if the sub-contractor was required to indemnify the owner of the colliery. Finally, the court needed to interpret the indemnity clauses to ascertain their meaning.

The court found that both Trius Constructions and the sub-contractor owed a duty of care to the plaintiff. It held that Trius Constructions, as the owner of the colliery, had a responsibility to ensure a safe working environment for all employees, including those of sub-contractors. The court apportioned liability between the parties, holding Trius Constructions 60% liable and the sub-contractor 40% liable. The court further found that there was a breach of an implied term in the contract, specifically the duty to provide a safe system of work, which led to the plaintiff's injuries. The court rejected the argument that the damages were too remote, holding that the injuries were a direct consequence of the breach. The court held that the standard terms and conditions of the colliery owner formed part of the contract, despite the contract being unsigned. Finally, the court interpreted the indemnity clauses to mean that the sub-contractor was required to indemnify the owner of the colliery for any loss or damage caused by the sub-contractor's negligence.

The court ordered Trius Constructions to pay damages to the plaintiff in the amount of $1,200,000, representing 60% of the total damages. The court also ordered the sub-contractor to pay damages to the plaintiff in the amount of $800,000, representing 40% of the total damages.

Orders