Robinson v Brennan and Powell Pty Ltd

CITATION:	ROBINSON & ANOR v BRENNAN & POWELL PTY LTD [1999] NSWCA 85
FILE NUMBER(S):	CA 40813/97
HEARING DATE(S):	11 March 1999
JUDGMENT DATE:	4 May 1999
PARTIES :	Arthur and Joy Robinson - A Brennan & Powell Pty Limited - R
JUDGMENT OF:	Priestley JA at 1; Sheller JA at 2; Giles JA at 27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	2349/94
LOWER COURT JUDICIAL OFFICER:	Sinclair DCJ

COUNSEL:	L G Foster SC/T A Alexis - A N C Hutley SC/M F Murphy - R
SOLICITORS:	Murray Stewart & Fogarty - A Colin Biggers & Paisley - R
CATCHWORDS:	NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - APPORTIONMENT OF DAMAGES - WHEN APPORTIONMENT REVIEWABLE ON APPEAL - DEMONSTRABLE APPEALABLE ERROR - COSTS
CASES CITED:	Davies v Swan Motor (Swansea) Ltd [1949] 2 KB 291 at 326 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
DECISION:	Appeal allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40813/97
DC 2349/94

PRIESTLEY JA
SHELLER JA
GILES JA

ROBINSON & ANOR v BRENNAN & POWELL PTY LIMITED

The appellants were managing agents for the body corporate of the Harbord Village Shopping Centre. The public liability insurers for the shopping centre were NZI Insurance Limited, under a policy which expired on the 11 August 1992.

On 20 July the respondent began negotiations with the appellants to obtain the insurance business of the shopping centre. A quote was given in August, which was rejected for being higher than that offered by REI. The respondent came back with another quote which was accepted, and the respondent arranged cover for the shopping centre from 2 September 1992.

On 18 August 1992, a worker in the shopping centre fell and was injured as a result of the negligence of the body corporate. She began proceedings to recover damages and her claim was settled for $100,000. The defendant body corporate had joined the appellants as a third party and the respondent as a second third party, claiming against each any amount that may be due to the plaintiff and its costs.

Sinclair DCJ held that there was a gap in the public liability cover of the body corporate on 18 August 1992 as a result of the appellant’s negligence, and further, that the respondents were under a duty of care to warn the body corporate of the possibility that a gap in insurance cover could occur. He ordered that the appellants and the respondents fully indemnify the body corporate, ascribing the appellants with 80 percent responsibility and the respondent with 20 percent. He further ordered that the appellants pay the costs of the body corporate in defending the action

The apportionment of liability and the order as to costs were challenged on appeal.

Held:
By Sheller JA, Priestley and Giles JJA agreeing:
(1) The trial judge held that the appellants negligence was a greater culpability, the degree of departure from the standard of care of the reasonable person, and of greater…