Rabay v Bristow

Case [2005] NSWCA 199
CITATION:

Rabay & Anor v Bristow [2005] NSWCA 199
HEARING DATE(S):

18 April 2005
 
JUDGMENT DATE: 


15 June 2005

JUDGMENT OF:

Handley JA at 1; McColl JA at 2; Bryson JA at 83
DECISION:

Appeal dismissed with costs
CATCHWORDS:

NEGLIGENCE - contractor injured while making deliveries to occupier's premises - whether primary judge erred in the formulation of the occupier's duty of care - whether contributory negligence established on the facts - DAMAGES - whether primary judge erred in the calculation of non-economic loss - whether primary judge erred in assessment of future earning capacity (D)
LEGISLATION CITED:

Civil Liability Act 2002 (NSW)
Motor Accidents Act 1988 (NSW)
CASES CITED:

Dell v Dalton (1991) 23 NSWLR 528
Donald v McKeown [2004] NSWCA 285
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Francis v Lewis [2003] NSWCA 152
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
House v R [1936] HCA 40; (1936) 55 CLR 499
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Kurrie v Azouri (1998) 28 MVR 406
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Nagle v Rottnest Island Authority [1992] HCA 43; (1993) 177 CLR 423
Owners - Strata Plan 156 v Gray [2004] NSWCA 304
Phillis v Daly (1988) 15 NSWLR 65
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431
Southgate v Waterford (1990) 21 NSWLR 427
Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24
Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 214 ALR 452
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Vial v Housing Commission of New South Wales [1976] 1 NSWLR 388
Williams v Commissioner of Road Transport & Tramways (NSW) [1933] HCA 30; (1933) 50 CLR 258
Woolworths Ltd v Lawlor [2004] NSWCA 209
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES:

Riad & Therese Rabay (Appellants)
George Bristow (Respondent)

FILE NUMBER(S):

CA 40414/04
COUNSEL:

I J Harrison SC/G J Parker (Appellants)
M A Elkaim SC/A B Parker (Respondent)
SOLICITORS:

McCulloch & Buggy (Appellants)
Markham Geikie Garrugia (Respondent)

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 718/03

LOWER COURT JUDICIAL OFFICER:

Cooper DCJ



                          CA 40414/04
                          DC 718/03

                          HANDLEY JA
                          McCOLL JA
                          BRYSON JA

                          Wednesday, 15 June 2005
      Riad RABAY & Anor v George BRISTOW

Judgment

1 HANDLEY JA: I agree with McColl JA.

2 McCOLL JA On 7 May 2004 Cooper ADCJ awarded the respondent $430,837.03 damages in respect of injuries he suffered on 17 February 2000 while making a delivery to the appellants’ premises. The appellants challenge his Honour’s conclusions on liability, contributory negligence and damages.


      Statement of the case

3 The facts are uncontroversial although liability was, as the…

Continue reading Rabay v Bristow

Sign in free to access the full text

Details
AGLC
Rabay v Bristow [2005] NSWCA 199
Case
[2005] NSWCA 199
Decision Date

CaseChat Overview and Summary

The appeal concerned a contractor, Mr. Rabay, who sustained injuries while making deliveries to the premises of the occupier, Mr. Bristow. Mr. Rabay alleged negligence on the part of Mr. Bristow, claiming the occupier had breached their duty of care. The primary judge had found in favour of Mr. Bristow, and Mr. Rabay appealed to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in their formulation of the occupier's duty of care owed to Mr. Rabay, and whether the primary judge had correctly determined the issue of contributory negligence on the part of Mr. Rabay. Additionally, the court was asked to consider whether the primary judge had made errors in the calculation of damages, specifically in relation to non-economic loss and the assessment of Mr. Rabay's future earning capacity.

The Court of Appeal considered the principles of occupier's liability and the duty of care owed to independent contractors entering premises. It reviewed the evidence presented at trial concerning the circumstances of Mr. Rabay's injury and the steps taken by Mr. Bristow to ensure safety. The court found no error in the primary judge's assessment of the duty of care or the finding of contributory negligence. Furthermore, the court was satisfied that the primary judge's calculations for non-economic loss and future earning capacity were sound and based on appropriate legal principles and evidence.

Consequently, the appeal was dismissed, and Mr. Rabay was ordered to pay Mr. Bristow's costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.