Vosebe Pty Ltd v Bakavgas - [2009] NSWCA 117

New South Wales

Court of Appeal

CITATION: Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117

HEARING DATE(S): 10 February 2009

JUDGMENT DATE:
22 May 2009

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Basten JA at 89

DECISION: (1) In the Supplier’s appeal against the Builder and the Plaintiff, set aside the order that the Supplier indemnify the Plaintiff in respect of costs to be paid by the Plaintiff to the Builder.
(2) Otherwise dismiss the Supplier’s appeal.
(3) Supplier to pay the Builder’s costs of the appeal and three-quarters of the Plaintiff’s costs of the appeal, the Plaintiff to have a certificate under the Suitors’ Fund Act 1951 in relation to the balance of his costs, if otherwise eligible.
(4) Plaintiff’s cross-appeal dismissed, with no order as to costs.
(5) Supplier’s appeal against the Employer dismissed with costs.

CATCHWORDS: TORTS – Negligence – Plaintiff injured assisting supplier to unload building materials – Whether duty of care owed by builder. - DAMAGES – Whether appropriate findings made – Whether primary judge’s assessment of plaintiff erroneous – Whether award excessive. - DAMAGES - Assessment - Divisible and indivisible loss - Disentangling - Assessment of future hypothetical events. - DAMAGES - Assessment - Poor employment record - Future economic loss - Increased allowance for vicissitudes.

LEGISLATION CITED: Civil Liability Act 2002 (NSW) s 13
Workers Compensation Act 1987 s 151Z

CATEGORY: Principal judgment

CASES CITED: ACQ Pty Ltd v Cook (No 2) [2008] NSWCA 306
Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; 122 CLR 649
Commonwealth of Australia v Elliot [2004] NSWCA 360
De Sales v Ingrilli [2002] HCA 52; 212 CLR 338
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox and Wood (1981) 148 CLR 438; (1981) 35 ALR 607
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Moran v McMahon (1985) 3 NSWLR 700
Najdovski v Crnojlovic [2008] NSWCA 175
Purkess v Crittenden [1965] HCA 34; 114 CLR 164
Roads and Traffic Authority of NSW v Chandler [2008] NSWCA 64
Seltsam v Ghaleb [2005] NSWCA 208; 3 DDCR 1
Shorey v PT Limited [2003] HCA 27; 77 ALJR 1104
State Rail Authority of New South Wales v Earthline Constructions Pty Limited [1999] HCA 3; (1999) 73 ALJR 306
Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 221 CLR 234
Watts v Rake [1960] HCA 58; 108 CLR 158
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; 184 CLR 485

TEXTS CITED: H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.12]-[1.9.13]

PARTIES:
CA 40068/08:
VOSEBE PTY LIMITED t/as Batemans Bay Windows & Glass (Appellant/Cross-Defendant)
Nick BAKAVGAS (First Respondent/Cross-Appellant)
GEOFF FIELDING DEVELOPMENTS PTY LIMITED (Second Respondent)
CA 40069/08
VOSEBE PTY LIMITED t/as Batemans Bay Windows & Glass (Appellant)
Frankco VAPORE (Respondent)

FILE NUMBER(S): CA 40068/08; 40069/08

COUNSEL: S G CAMPBELL SC/…

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: [2009] NSWCA 117
Decision Date: 22 May 2009

CaseChat Overview and Summary

Vosebe Pty Ltd (the Builder) was the defendant in proceedings brought by the Plaintiff, who was injured while assisting a supplier to unload building materials. The supplier was also a party to the proceedings. The dispute concerned whether the Builder owed a duty of care to the Plaintiff and, if so, the assessment of damages. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the Builder owed a duty of care to the Plaintiff in the circumstances of the Plaintiff assisting the supplier with unloading, and if so, whether the primary judge's assessment of damages was appropriate, particularly concerning findings about the Plaintiff's employment record and the calculation of future economic loss, including an allowance for vicissitudes. The court also considered the supplier's appeal against the Builder and the Plaintiff, and the Plaintiff's cross-appeal.

The Court of Appeal, in its reasoning, examined the established principles of negligence concerning the duty of care owed by a builder to individuals who might be affected by the building works, even if not directly employed by them. The court considered the nature of the assistance provided by the Plaintiff and the foreseeability of harm. Regarding damages, the court reviewed the primary judge's findings on the Plaintiff's earning capacity and the appropriate adjustments for future uncertainties. The court ultimately determined that the primary judge's findings on the duty of care and the assessment of damages were largely sound, but made specific adjustments regarding the apportionment of costs and the supplier's indemnity.

The Court of Appeal ordered that the supplier's appeal against the Builder and the Plaintiff be set aside in relation to an indemnity for costs, and otherwise dismissed the supplier's appeal. The supplier was ordered to pay the Builder's costs of the appeal and three-quarters of the Plaintiff's costs, with the Plaintiff to have a certificate under the Suitors' Fund Act 1951 for the balance of his costs. The Plaintiff's cross-appeal was dismissed with no order as to costs, and the supplier's appeal against the Employer was dismissed with costs.

Orders

Orders of the court

(1) In the Supplier's appeal against the Builder and the Plaintiff, set aside the order that the Supplier indemnify the Plaintiff in respect of costs to be paid by the Plaintiff to the Builder. (2) Otherwise dismiss the Supplier's appeal. (3) Supplier to pay the Builder's costs of the appeal and three-quarters of the Plaintiff's costs of the appeal, the Plaintiff to have a certificate under the Suitors' Fund Act 1951 in relation to the balance of his costs, if otherwise eligible. (4) Plaintiff's cross-appeal dismissed, with no order as to costs. (5) Supplier's appeal against the Employer dismissed with costs.

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.

CITATION:	Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117
HEARING DATE(S):	10 February 2009
JUDGMENT DATE:	22 May 2009
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; Basten JA at 89
DECISION:	(1) In the Supplier’s appeal against the Builder and the Plaintiff, set aside the order that the Supplier indemnify the Plaintiff in respect of costs to be paid by the Plaintiff to the Builder. (2) Otherwise dismiss the Supplier’s appeal. (3) Supplier to pay the Builder’s costs of the appeal and three-quarters of the Plaintiff’s costs of the appeal, the Plaintiff to have a certificate under the Suitors’ Fund Act 1951 in relation to the balance of his costs, if otherwise eligible. (4) Plaintiff’s cross-appeal dismissed, with no order as to costs. (5) Supplier’s appeal against the Employer dismissed with costs.
CATCHWORDS:	TORTS – Negligence – Plaintiff injured assisting supplier to unload building materials – Whether duty of care owed by builder. - DAMAGES – Whether appropriate findings made – Whether primary judge’s assessment of plaintiff erroneous – Whether award excessive. - DAMAGES - Assessment - Divisible and indivisible loss - Disentangling - Assessment of future hypothetical events. - DAMAGES - Assessment - Poor employment record - Future economic loss - Increased allowance for vicissitudes.
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) s 13 Workers Compensation Act 1987 s 151Z
CATEGORY:	Principal judgment
CASES CITED:	ACQ Pty Ltd v Cook (No 2) [2008] NSWCA 306 Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; 122 CLR 649 Commonwealth of Australia v Elliot [2004] NSWCA 360 De Sales v Ingrilli [2002] HCA 52; 212 CLR 338 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox and Wood (1981) 148 CLR 438; (1981) 35 ALR 607 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Moran v McMahon (1985) 3 NSWLR 700 Najdovski v Crnojlovic [2008] NSWCA 175 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Roads and Traffic Authority of NSW v Chandler [2008] NSWCA 64 Seltsam v Ghaleb [2005] NSWCA 208; 3 DDCR 1 Shorey v PT Limited [2003] HCA 27; 77 ALJR 1104 State Rail Authority of New South Wales v Earthline Constructions Pty Limited [1999] HCA 3; (1999) 73 ALJR 306 Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 221 CLR 234 Watts v Rake [1960] HCA 58; 108 CLR 158 Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; 184 CLR 485
TEXTS CITED:	H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.12]-[1.9.13]
PARTIES:	CA 40068/08: VOSEBE PTY LIMITED t/as Batemans Bay Windows & Glass (Appellant/Cross-Defendant) Nick BAKAVGAS (First Respondent/Cross-Appellant) GEOFF FIELDING DEVELOPMENTS PTY LIMITED (Second Respondent) CA 40069/08 VOSEBE PTY LIMITED t/as Batemans Bay Windows & Glass (Appellant) Frankco VAPORE (Respondent)
FILE NUMBER(S):	CA 40068/08; 40069/08
COUNSEL:	S G CAMPBELL SC/…