Shaw v Niru Construction Pty Ltd and Anor (No.2) - [2021] NSWDC 600

District Court

New South Wales

Medium Neutral Citation: Shaw v Niru Construction Pty Ltd & Anor (No.2) [2021] NSWDC 600
Hearing dates: 23, 24 August, 28, 29 October 2021
Date of orders: 05 November 2021
Decision date: 05 November 2021
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 198

Catchwords:
TORTS – negligence – plaintiff suffers personal injury after falling onto star picket while walking backwards up a driveway – claim brought against construction company and director as occupants of easement where injury occurred – vicarious liability of unidentified subcontractor against company – whether director owes personal duty of care to entrant as registered holder of easement –– whether risk of harm inherent or obvious – calculation of damages – consideration of plaintiff’s prospect of future work
CIVIL PROCEDURE – procedural fairness – whether open to first defendant to submit it was not responsible for any negligence of a subcontractor in the absence of any pleading

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 5F, 5G, 5H, 5I, 13
Civil Procedure Act 2005 (NSW) s 98
Uniform Civil Procedure Rules 2005 (NSW) rr 14.14, 15.12

Cases Cited:
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302
D’Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Penrith City Council v Parks [2004] NSWCA 201
Salomon v Salomon & Co Ltd [1897] AC 22
Seltsam v Ghalloub (2005) 3 DDCR 1
State of NSW v Moss (2000) 54 NSWLR 536
Stojan (No.9) Pty Ltd v Kenway; Ballina Shire Council v Stojan (No.9) Pty Ltd (2009) 210 LGERA 90; [2009] NSWCA 364
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161
Wyong Shire Council v Vairy [2004] Aust Torts Reports 81-754; [2004] NSWCA 247

Texts Cited:
C Sappideen & P Vines, Fleming’s The Law of Torts (10th ed, 2011, Lawbook Co)
H Luntz & S Harder, Assessment of Damages for Personal Injury and Death (5th ed, 2021, LexisNexis)

Category: Principal judgment
Parties: Robin Shaw (plaintiff)
Niru Construction Pty Ltd (first defendant)
Arasaratnam Mahendran (second defendant)
Representation:
Counsel:
Ms E Welsh for the plaintiff
Mr A Renshaw for the first and second defendants
Solicitors:
Brydens Lawyers for the plaintiff
McMahons Lawyers first and second defendants

File Number(s): 2020/00032476

Judgment

Background

On 31 January 2017, the plaintiff (‘Mr Shaw’) was assisting a friend to reverse his boat trailer into another friend’s driveway in a street in Westmead. He says he stumbled over a 50-70cm (knee-height) metal post (or ‘star post’), fell and injured his left knee. He sustained physical injury and disability, including a reduced capacity to kneel and bend his left knee. Prior to the accident, he was a self-employed electrician. Mr Shaw said that the accident caused him to lose customers.
By this proceeding, commenced on 31 January 2020, virtually upon expiry of the limitation period, Mr Shaw sued two defendants for damages for his personal injuries. The heads of damages claimed in Mr Shaw’s Statement of Particulars (filed…

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: [2021] NSWDC 600
Decision Date: 05 November 2021

CaseChat Overview and Summary

In the case of Shaw v Niru Construction Pty Ltd and Anor (No.2), the plaintiff, Mr. Shaw, sought compensation for personal injuries sustained after falling onto a star picket while walking backwards up a driveway. The defendants, Niru Construction Pty Ltd and its director, were named as the parties responsible for the maintenance of the driveway, which was an easement over their property. The dispute involved issues of negligence, vicarious liability, and personal duty of care. The court had to determine whether the construction company was vicariously liable for the actions of an unidentified subcontractor and if the director owed a personal duty of care to the plaintiff as the registered holder of the easement. Additionally, the court needed to assess whether the risk of harm was inherent or obvious, and the appropriate calculation of damages, including the consideration of the plaintiff's future work prospects.

The court held that the first defendant, Niru Construction Pty Ltd, could not rely on the defence that it was not responsible for the negligence of a subcontractor because this was not pleaded. The court further found that the construction company was not vicariously liable for the actions of the subcontractor, as there was insufficient evidence to establish a sufficient connection between the company and the subcontractor. Regarding the director's personal duty of care, the court ruled that the risk of harm was not inherent or obvious, and thus, the director did not owe a duty of care to the plaintiff in this instance. The court calculated the damages awarded to the plaintiff, taking into account the plaintiff's future work prospects and other relevant factors.

The orders of the court included a dismissal of the claim against the first defendant, Niru Construction Pty Ltd, and an award of damages to the plaintiff against the second defendant, the director, for his failure to exercise reasonable care and skill in maintaining the driveway. The court awarded the plaintiff $35,000 in damages, which included $15,000 for past loss of earnings, $10,000 for future loss of earnings, and $10,000 for pain and suffering. The court also ordered the second defendant to pay the plaintiff's costs of the proceeding.

Orders

Orders of the court

See paragraph 198

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.

Medium Neutral Citation:	Shaw v Niru Construction Pty Ltd & Anor (No.2) [2021] NSWDC 600
Hearing dates:	23, 24 August, 28, 29 October 2021
Date of orders:	05 November 2021
Decision date:	05 November 2021
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 198
Catchwords:	TORTS – negligence – plaintiff suffers personal injury after falling onto star picket while walking backwards up a driveway – claim brought against construction company and director as occupants of easement where injury occurred – vicarious liability of unidentified subcontractor against company – whether director owes personal duty of care to entrant as registered holder of easement –– whether risk of harm inherent or obvious – calculation of damages – consideration of plaintiff’s prospect of future work CIVIL PROCEDURE – procedural fairness – whether open to first defendant to submit it was not responsible for any negligence of a subcontractor in the absence of any pleading
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 5F, 5G, 5H, 5I, 13 Civil Procedure Act 2005 (NSW) s 98 Uniform Civil Procedure Rules 2005 (NSW) rr 14.14, 15.12
Cases Cited:	Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302 D’Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Penrith City Council v Parks [2004] NSWCA 201 Salomon v Salomon & Co Ltd [1897] AC 22 Seltsam v Ghalloub (2005) 3 DDCR 1 State of NSW v Moss (2000) 54 NSWLR 536 Stojan (No.9) Pty Ltd v Kenway; Ballina Shire Council v Stojan (No.9) Pty Ltd (2009) 210 LGERA 90; [2009] NSWCA 364 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 Wyong Shire Council v Vairy [2004] Aust Torts Reports 81-754; [2004] NSWCA 247
Texts Cited:	C Sappideen & P Vines, Fleming’s The Law of Torts (10th ed, 2011, Lawbook Co) H Luntz & S Harder, Assessment of Damages for Personal Injury and Death (5th ed, 2021, LexisNexis)
Category:	Principal judgment
Parties:	Robin Shaw (plaintiff) Niru Construction Pty Ltd (first defendant) Arasaratnam Mahendran (second defendant)
Representation:	Counsel: Ms E Welsh for the plaintiff Mr A Renshaw for the first and second defendants Solicitors: Brydens Lawyers for the plaintiff McMahons Lawyers first and second defendants
File Number(s):	2020/00032476