Fairfield City Council v Coupe, A R Maher T/as A R Maher Services & M L Maher T/as A R Maher Services [2001] NSWCA 195

New South Wales Court of Appeal

CITATION : Fairfield City Council v Coupe, A R Maher T/as A R Maher Services & M L Maher T/as A R Maher Services [2001] NSWCA 195 FILE NUMBER(S) : CA 40531/00 HEARING DATE(S) : 26/06/01 JUDGMENT DATE : 4 July 2001

PARTIES : Fairfield City Council v Paul Dallas Coupe, Allen Richard Maher T/as A R Maher Services & Martina Louise Maher T/as A R Maher Services JUDGMENT OF : Heydon JA at 1; Ipp AJA at 4; Rolfe AJA at 71

LOWER COURT JURISDICTION : District Court LOWER COURT 562/99 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

R S McIlwaine SC (Appellant) COUNSEL : B H K Donovan QC/R B McCloghry (1st Respondent) D D Feller (2nd & 3rd Respondents) McCabe Terrill (Appellant) SOLICITORS : Eugene Lepore & Associates (1st Respondent) Vardanega Roberts (2nd & 3rd Respondents) CATCHWORDS : TORT - Negligence - Employer's non-delegable duty of care - Whether task leading to injury was within scope of worker's employment - Apportionment of damages between joint tortfeasors - Effect of contractual indemnity on tortious liability. ND LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1965 Law Reform (Miscellaneous Provisions) Act 1946 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 CASES CITED: Wyong Shire Council v Shirt (1980) 146 CLR 40 Fennell v Supervision and Engineering Services Holdings Pty Limited (1988) 47 SASR 6 Australian Paper Plantations Pty Limited v J & E M Venturoni [2000] VSCA 71 DECISION : (1) Appeal upheld (2) Orders made by Delaney DCJ as to liability be set aside (3) Verdict in favour of the 1st respondent against both the appellant and the 2nd and 3rd respondents (4) Liability for the 1st respondent's damages be apportioned as between the appellant and the 2nd and 3rd respondents on a 75/25 basis, with the appellant bearing the greater degree of responsibility (5) The appellant and the 2nd and 3rd Respondents to pay the 1st respondent's costs of the trial (6) The 2nd and 3rd respondents pay the appellant's costs of the appeal and the 2nd and 3rd respondents be eligible for a Suitor's Fund Certificate (7) The appellant to pay the 1st respondent's costs of the appeal (8) Parties to bring in short minutes reflecting all orders to be made.