TOGA BUILDING CO PTY LTD v KARHUGH PTY LTD and ANOR [1996] NSWCA 533

TOGA BUILDING CO PTY LTD v KARHUGH PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, CLARKE and COLE JJA 25 July 1996, 25 July 1996 [1996] NSWCA 533

Negligence — Personal injuries sustained on building site by employee — apportionment of liability — Conditions of subcontract — Whether breach of site safety requirements — Whether head contractor indemnified by subcontractor (employer)

Negligence — Claim by employee for injuries sustained in accident on building site — Finding by trial judge of liability in negligence and for breach of regulations on part of employer and head contractor — Apportionment of liability by trial judge, 70% employer and 30 per cent head contractor — Appeal against dismissal by trial judge of claim by head contractor against employer (subcontractor) for indemnity in respect of amount apportioned to head contractor — Clause in subcontract relating to site safety in the use of ladders — Whether breach of subcontract so as to attract indemnity clause in subcontract — Whether compliance with condition relating to ladders waived — Held, appeal dismissed, there was no error in the trial judge's allocation of responsibility between the two negligent defendants.

ORDERS Appeal dismissed with costs.

Mahoney P This is an appeal against a judgment or portion of a judgment of McInerney J given on 9 March 1993. The judgment was given in the context of a claim by the plaintiff in respect of injuries suffered by him on 15 August 1983. The plaintiff was employed by a subcontractor, the first defendant in the proceedings, to do work for which the subcontractor had contracted with the second defendant, Toga Building Co Ltd, on a building site in Palmer Street, Woolloomooloo. (The work is described in his Honour's judgment and I will not repeat the detail of it).