Vosebe Pty Ltd v Bakavgas

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.