In matter number 2010/79805 (a) Appeal allowed; (b) Set aside Orders (a), (b), (c) and (d) made by his Honour Judge Levy SC on 4 March 2010 as far as they apply to the appellant and in lieu thereof: (i) verdict and judgment for the appellant against the first respondent; (ii) the appellant's cross-claim against the second respondent be dismissed; (c) The parties are to provide written submissions as to the costs of the trial (including the cross-claim) and the appeal in accordance with directions to be made on the publication of this judgment. In matter number 2010/80871 (a) Appeal allowed; (b) Set aside Orders (a), (b), (c) and (d) made by his Honour Judge Levy SC of 4 March 2010 so far as they apply to the appellant and in lieu thereof: (i) verdict and judgment for the first respondent against the appellant in the sum of $70,000; (ii) the second respondent's cross-claim against the appellant be dismissed. (c) The parties are to provide written submissions as to the costs of the trial (including the cross-claim) and the appeal in accordance with directions to be made on the publication of this judgment. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
TORT - Negligence - Duty of care - Causation of injury - Contributory negligence - Plumber decommissions solar hot-water system but does not advise property owner that he did not disconnect electricity - Handyman later asked by owner to attend to leak in roof in vicinity of decommissioned hot-water system - Handyman tells owner that electricity still connected - Six weeks later handyman goes back on to roof to attend to leak, and is electrocuted - Compensation to relatives proceedings brought - Whether plumber owed duty of care to handyman - Whether breach of any such duty caused handyman's death - Whether owner owed duty of care to handyman - Whether breach of any such duty caused handyman's death - Apportionment of liability.
[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 Stephens v Giovenco; Dick v Giovenco
Sign in free to access the full text
Details
AGLC
Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53
Case
[2011] NSWCA 53
Decision Date
CaseChat Overview and Summary
The proceedings involved claims for compensation brought by the relatives of a deceased handyman against a plumber and the property owner. The handyman had been electrocuted while working on a roof in the vicinity of a solar hot-water system that the plumber had decommissioned. The dispute centred on whether the plumber or the property owner, or both, owed a duty of care to the handyman, and whether any breach of such a duty caused his death. The matter was heard in the Court of Appeal of New South Wales, with judgment delivered by Allsop P, Hodgson and Tobias JJA.
The primary legal issues before the Court of Appeal were whether the plumber owed a duty of care to the handyman, and if so, whether a breach of that duty caused the handyman's death. Concurrently, the court considered whether the property owner owed a duty of care to the handyman, and if so, whether a breach of that duty caused his death. The court was also required to determine the apportionment of liability between the parties, if any.
The Court of Appeal allowed the appeals, setting aside the orders made by the trial judge. The court found that the plumber did not owe a duty of care to the handyman in the circumstances. The reasoning focused on the scope of the plumber's duty, which was limited to the work he performed and did not extend to anticipating the actions of a subsequent tradesperson in relation to an unrelated aspect of the property. The court also found that the property owner did not owe a duty of care to the handyman, as the owner had not been negligent in his dealings with the handyman. Consequently, the court entered verdicts and judgments in favour of the plumber and dismissed the handyman's cross-claim against the property owner. The court also made orders regarding the costs of the trial and the appeal.
Orders
Orders of the court
In matter number 2010/79805
(a) Appeal allowed;
(b) Set aside Orders (a), (b), (c) and (d) made by his Honour Judge Levy SC on 4 March 2010 as far as they apply to the appellant and in lieu thereof:
(i) verdict and judgment for the appellant against the first respondent;
(ii) the appellant's cross-claim against the second respondent be dismissed;
(c) The parties are to provide written submissions as to the costs of the trial (including the cross-claim) and the appeal in accordance with directions to be made on the publication of this judgment.
In matter number 2010/80871
(a) Appeal allowed;
(b) Set aside Orders (a), (b), (c) and (d) made by his Honour Judge Levy SC of 4 March 2010 so far as they apply to the appellant and in lieu thereof:
(i) verdict and judgment for the first respondent against the appellant in the sum of $70,000;
(ii) the second respondent's cross-claim against the appellant be dismissed.
(c) The parties are to provide written submissions as to the costs of the trial (including the cross-claim) and the appeal in accordance with directions to be made on the publication of this judgment.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]