Ritchie v Advanced Plumbing and Drains Pty Ltd - [2022] NSWSC 330

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Ritchie v Advanced Plumbing and Drains Pty Ltd [2022] NSWSC 330
Hearing dates: 22-24 November 2021
Date of orders: 31 March 2022
Decision date: 31 March 2022
Jurisdiction: Common Law
Before: Davies J
Decision:
1. See para [132] for answers to common questions.
2. Judgment for the second defendant.
3. The plaintiff is to pay the second defendant’s costs

Catchwords:
NEGLIGENCE – vicarious liability – employer and employee – whether employees of company were working for company or director of company – whether work being performed formed part of company’s business – representative proceedings - where plaintiff and group members seeking damages for losses caused by Carwoola Bushfire – where employees of company used a power cutting tool which emitted sparks and caused the bushfire – where employees and company breached their duty of care to plaintiff and group members
INSURANCE – liability insurance – legal liability insurance – conditions and warranties – exclusions – whether work formed part of the insured’s business - whether reasonable precautions were taken – failure to comply with statutory obligations - specific exclusions in endorsement to the policy – whether the use of a power cutter to cut steel constituted using spark producing equipment - noscitur a sociis maxim - ejusdem generis principle

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 30, 31, 32, 33
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss 3, 4
Civil Procedure Act 2005 (NSW) Pt 10
Rural Fires Act 1997 (NSW) ss 99, 100
Rural Fires Regulation 2013 (NSW) cl 22

Cases Cited:
Australian Aviation Underwriting Pty Ltd v Henry (1988) 12 NSWLR 121
Australian Casuality Co Limited v Federico (1986) 160 CLR 513
Barrie Toepfer Earthmoving and Land Management Pty Ltd v CGU Insurance Ltd [2016] NSWCA 67
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629
Foscolo, Mango and Company Limited v Stag Line Limited [1931] 2 KB
Fraser v B. N. Furman (Productions) Ltd; Miller Smith & Partners (A Firm) Third Party [1967] 1 WLR 898
Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368
Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390
Orleans Investments Pty Ltd & Anor v Mindshare Communications Ltd [2009] NSWCA 40; (2009) 254 ALR 81
SBJ Stephenson Limited v Keith Anthony Mandy [2000] FSR 286
Thorman v Dowgate Steamship Company Ltd [1910] 1 KB 410
VACC Insurance v BP Australia Ltd (1999) 47 NSWLR 716; [1999] NSWCA 427
Watts v Perry [1972] 1 NSWLR 73

Texts Cited:
McGillivray & Parkington on Insurance Law 6th Edition

Category: Principal judgment
Parties: Margaret Ritchie (Plaintiff)
Advanced Plumbing and Drains Pty Ltd
(First Defendant)
Insurance Australia Ltd t/as CGU Insurance (Second Defendant)
Representation:
Counsel:
G Dalton QC & A H Edwards (Plaintiff)
No appearance (First Defendant)
P Greenwood SC & Z Heger (Second Defendant)
Solicitors:
Maddens Lawyers (Plaintiff)
Unrepresented (First Defendant)
McCabes Lawyers (Second Defendant)

File Number(s): 2017/126664
Publication restriction:

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: [2022] NSWSC 330
Decision Date: 31 March 2022

CaseChat Overview and Summary

In the case of Ritchie v Advanced Plumbing and Drains Pty Ltd, the plaintiff sought damages for losses caused by the Carwoola Bushfire. The plaintiff alleged that the bushfire was caused by employees of the respondent, Advanced Plumbing and Drains Pty Ltd, using a power cutting tool which emitted sparks. The plaintiff and a group of other affected parties sought to bring representative proceedings against the respondent for breach of duty of care.

The primary legal issue before the court was whether the employees were working for the company or for the director of the company at the time of the incident. If the employees were working for the company, the next issue was whether the work being performed formed part of the company's business activities. This determination was critical in establishing vicarious liability for the company. Another key issue was whether the company had breached its duty of care by failing to take reasonable precautions, particularly in relation to the use of the power cutting tool which emitted sparks. The court also had to consider the conditions and warranties of the company's liability insurance policy, including specific exclusions, and whether the use of the power cutter to cut steel constituted using spark-producing equipment.

The court found that the employees were working for the company, and that the work being performed formed part of the company's business. The employees had breached their duty of care by failing to take reasonable precautions, including the use of the power cutting tool which emitted sparks. The court also found that the exclusions in the company's liability insurance policy applied, and that the use of the power cutter to cut steel did constitute using spark-producing equipment. The court held that the company was vicariously liable for the actions of its employees, and that the plaintiff and the group members were entitled to damages for their losses caused by the bushfire. The court ordered the company to pay damages to the plaintiff and the group members.

Orders