Thompson v NSW Land and Housing Corporation (No 2) - [2012] NSWSC 864

Supreme Court

New South Wales

Medium Neutral Citation: Thompson v NSW Land and Housing Corporation (No 2) [2012] NSWSC 864
Hearing dates: On written submissions
Decision date: 02 August 2012
Before: Hislop J
Decision:
1. Judgment for the cross defendant on the first cross claim.
2. The cross claimant to pay the cross defendant's costs of the first cross claim.
3. Judgment for the first cross defendant on the second cross claim.
4. The cross claimant on the second cross claim to pay the first cross defendant's costs of the second cross claim.
5. Judgment for the cross claimant on the second cross claim against the second cross defendant on the second cross claim for:
(a) its costs of defending the first cross claim less credit for such of those costs as are recovered from the cross claimant on the first cross claim;
(b) the costs payable by it to the first cross defendant on the second cross claim;
(c) its costs of prosecuting the second cross claim.
6. The claims for interest made by Pestkil are deferred.

Catchwords: Common law - personal injury - insurance - costs
Cases Cited: Australian Casualty Co Limited v Federico [1986] HCA 2; (1986) 160 CLR 513
Australia Paper Manufacturers Limited v American International Underwriters [1994] 1 VR 685
McCann v Switzerland Insurance Australia Limited [2000] HCA 65; (2000) 203 CLR 579
Carlingford Australia General Insurance Limited v EZ Industrial Limited [1988] VR 349
Autotronic Systems Inc. v Aetna Life and Casualty 456 9 NYS 2d 504
Lahoud v Lahoud [2006] NSWSC 126
Texts Cited: Law of Liability Insurance, Derrington and Ashton, 2nd ed, 2005
Category: Consequential orders
Parties:
Murray Thompson (Plaintiff)
NSW Land & Housing Corporation (Defendant)

1st Cross Claim:
NSW Land & Housing Corporation (Cross Claimant)
ACN 005 511 062 Pty Limited (previously known as "Pestkil") (Cross Defendant)
2nd Cross Claim:
ACN 005 511 062 Pty Limited (previously known as "Pestkil") (Cross Claimant)
NSW Land & Housing Corporation (1st Cross Defendant)
HDI-Gerling Australia Insurance Company Limited (2nd Cross Defendant)
Representation: Defendant: M.J. Joseph SC
Cross Defendant (1st Cross Claim): M.J. Jenkins
2nd Cross Defendant (2nd Cross Claim): D. Priestley
Defendant: McCabe Terrill Lawyers
Cross Defendant (1st Cross Claim): Carroll & O'Dea
2nd Cross Defendant (2nd Cross Claim): Kemp & Co Lawyers

File Number(s): 2003/91442

Judgment

Introduction

The plaintiff sought damages from the defendant for injuries allegedly sustained when pest control services were provided by Pestkil Pty Limited, (now known as ACN 005 511 062 Pty Limited, ("Pestkil")) at premises rented by the plaintiff from the defendant.

The plaintiff was unsuccessful in those proceedings. Judgment was entered for the defendant. The plaintiff was ordered to pay the defendant's costs of the principal proceedings.

The proceedings gave rise to three cross claims:

(a) the defendant (cross claimant on first cross claim) v Pestkil (cross defendant on first cross claim);

(b) Pestkil (cross claimant on second cross claim) v the defendant (first cross defendant on second cross claim);

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.

Continue reading Thompson v NSW Land and Housing Corporation (No 2)

Details

AGLC: Thompson v NSW Land and Housing Corporation (No 2) [2012] NSWSC 864
Case: [2012] NSWSC 864
Decision Date: 02 August 2012

CaseChat Overview and Summary

The case of Thompson v NSW Land and Housing Corporation (No 2) involved a plaintiff who had suffered personal injuries and sought compensation from the defendant, a government entity. The plaintiff argued that the defendant was liable for the injuries caused by the dangerous condition of a property they had leased. The case was heard in the Supreme Court of New South Wales. The primary legal issues before the court were whether the defendant owed a duty of care to the plaintiff and, if so, the extent of that duty and the scope of liability. The court was also required to consider the application of the common law principles of negligence and the relevant statutory provisions governing the liability of public authorities.

The court found that the defendant did owe a duty of care to the plaintiff, which included a responsibility to ensure that the leased property was reasonably safe for its intended use. In assessing the extent of that duty, the court considered the nature of the relationship between the parties and the foreseeability of the risk of injury. The court held that the defendant's liability was not limited by the statutory provisions that typically protect public authorities from liability, as the injuries in question arose from the defendant's failure to exercise reasonable care in maintaining the property. The court emphasised the importance of applying common law principles to determine the scope of liability in cases involving public authorities, and rejected the argument that statutory immunity should apply in this instance.

The court's decision resulted in the defendant being held liable for the plaintiff's injuries and ordered to pay compensation. The court also addressed the issue of costs, ruling that the plaintiff was entitled to recover costs from the defendant in accordance with the usual principles governing the award of costs in civil proceedings. The court noted that the defendant's conduct in failing to maintain the property in a safe condition was a significant factor in its decision to award costs to the plaintiff. The final orders of the court included an award of damages to the plaintiff and a direction that the defendant pay the plaintiff's costs of the proceeding.

Orders