Elphick v Westfield Shopping Centre Management Co Pty Ltd [2010] NSWDC 152

New South Wales District Court

CITATION: Elphick v Westfield Shopping Centre Management Co Pty Ltd [2010] NSWDC 152 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 - 11 June 2010 and 2 July 2010

JUDGMENT DATE: 30 July 2010

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

1. The plaintiff is entitled to a verdict against the second defendant on the claim in the amount of $525,658. 2. The first defendant is entitled to a verdict against the plaintiff on the claim. 3. The first defendant/cross - claimant is entitled to a verdict against the second defendant/ first cross - defendant on the first cross-claim for indemnity against any loss of costs incurred in defending the plaintiff's action against it; otherwise as against the second defendant/ first cross - defendant the first cross-claim is to be dismissed. DECISION: 4. The second cross - defendant is entitled to a verdict against the first defendant/cross - claimant on the first cross-claim. 5. The second defendant/cross - claimant is entitled to a verdict against the cross - defendant on the second cross-claim for indemnity against the damages and any costs payable to the plaintiff on his claim; otherwise the second cross-claim is to be dismissed. 6. Parties to be heard on interest and on the costs of the proceedings and to prepare short minutes of order to give effect to this decision. 7. Note that the workers compensation payback amount is $119,372.

CATCHWORDS: TORTS - Negligence - Duty of care - Breach of duty - Accident in the workplace of a shopping centre complex - Whether occupier liable for injury to employee of an independant contractor - Circumstances of the occurrence leading to injury - Contractual relationship between the defendants - Contributory negligence - Indemnity by contractor in favour of occupier for any loss in relation to personal injury arising from or out of any negligence of the contractor - Indemnity by workers compensation insurer in favour of negligent employer defendant - Assessment of damages - Interest - Costs