Zauner Constructions Pty Ltd v Harvey

[2004] NSWCA 8

CITATION:	ZAUNER CONSTRUCTIONS PTY LTD v HARVEY & ANOR [2004] NSWCA 8
HEARING DATE(S):	24 October 2003
JUDGMENT DATE:	14 May 2004
JUDGMENT OF:	Sheller JA at 1; McColl JA at 63; Grove J at 88
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Appeal - Personal injury - Workplace injury - Negligence - Terms of building contract - Apportionment of responsibility between employer and contractor when negligent construction caused wall to fall - Damages - Future economic loss - Quantum
LEGISLATION CITED:	Construction Safety Act 1912 Law Reform (Miscellaneous Provisions) Act 1965 Workers Compensation Act 1987
CASES CITED:	Bradford v Symondsosn (1881) 7 QBD 456 CSR Limited v Elliott (CA, unreported, 23 June 1994, BC9404968) Jennings Construction Limited v QH & M Birt Pty Ltd (1986) 8 NSWLR 18 Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70; (2001) 210 CLR 181 Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 McCann v Switzerland Insurance Australia Limited [2000] HCA 65; (2000) 203 CLR 579 North v Marina [2003] NSWSC 64 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Tersons Limited v Stevenage Development Corporation [1963] 2 Lloyd's Rep 333 Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65
PARTIES :	Zauner Constructions Pty Ltd - Appellant James Robert Harvey - First Respondent Commercial Club (Albury) Limited - Second Respondent
FILE NUMBER(S):	CA 41189/02
COUNSEL:	J D Hislop QC/M J Ward - Appellant B Dooley - First Respondent H N Kelly SC/M Holz - Second Respondent
SOLICITORS:	Keddies - Appellant R H Lewis & Associates - First Respondent A O Ellison - Second Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	70/01 (Albury)
LOWER COURT JUDICIAL OFFICER :	Walmsley DCJ

CA 41189/02
DC 70/01

SHELLER JA
McCOLL JA
GROVE J

ZAUNER CONSTRUCTIONS PTY LTD v HARVEY & ANOR

The first respondent was employed by and worked at the second respondent’s business as a kitchen hand. On the morning of 2 October 1998, the first respondent was standing in the kitchen area with other staff, having been requested to attend a demonstration of a new dishwasher. The appellant which was a construction company had arranged this demonstration. At this time, the appellant was in the process of erecting a temporary wall nearby the kitchen. Just before the dishwasher demonstration commenced, the temporary wall fell over, struck the first respondent and knocked him over.

As a result of this incident, the first respondent sustained injures to his right shoulder, head, back of shoulders and trunk. The first respondent commenced proceedings against the appellant and second respondent for breaches of statutory duty and negligence, to recover damages for these injuries.

Both the appellant and second respondent cross-claimed against the other. In the cross-claims the appellant relied upon the terms of a building contract, in particular clause P8.8, which stated that if the owner (the second respondent) of the premises enters into occupation of the Works or any portion thereof, then in respect to any…