New South Wales Court of Appeal CITATION : Tempo Services Ltd v State of NSW [2004] NSWCA 5 HEARING DATE(S) : 09/12/03 JUDGMENT DATE : 6 February 2004 JUDGMENT OF : Meagher JA at 1; Giles JA at 8; Hodgson JA at 11 DECISION : Leave to appeal dismissed with costs. CATCHWORDS : INDEMNITY CLAUSES: Construction - Meaning of words "arising out of or in connection with or caused by" - Relationship between performance of services and injury. CASES CITED : State of New South Wales v Tempo Services Limited [2004] NSWCA 4 Tempo Services Ltd PARTIES : v State of New South Wales FILE NUMBER(S) : CA 40538 of 2003 COUNSEL : A: J D Hislop QC & G Parker R: B Walker SC & Miss S E Pritchard SOLICITORS : A: Ebsworth & Ebsworth R: Hicksons LOWER COURT District Court JURISDICTION : LOWER COURT 9314 of 2001 FILE NUMBER(S) : LOWER COURT Chesterman ADCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40538 of 2003 MEAGHER JA GILES JA HODGSON JA Friday, 6 February 2004 TEMPO SERVICES LIMITED v STATE OF NEW SOUTH WALES Judgment 1 MEAGHER JA: In this matter, a Mrs Valerie Chew sued both the State and her employer, Sillgold Pty Limited, a subsidiary of the appellant Tempo Services Limited. She sought damages for personal injuries sustained by her as a result of a fall on a staircase at the Mt Druitt High School. The injuries occurred about 5.00 am on 12 November 1999. It was dark and the lighting of the staircase was inoperative, a condition it had been in for sometime notwithstanding complaints by Mrs Chew and others. 2 His Honour found against the State on the basis that the steps were, at the time of the accident, unsafe to an unreasonable extent due chiefly to the lack of lighting and that the State had failed to repair the lights in response to complaints made about it. His Honour accepted that the State's breach caused or contributed to the plaintiff's injuries, and on a cross-claim between the defendants held the State to be liable to the plaintiff for 75% of the plaintiff's award (after adjustment for contributory negligence). 3 His Honour held the employer liable to the plaintiff on the basis, inter alia, that "proof of liability against the First Defendant (i.e. the State) also establishes liability against the Second Defendant (i.e. Tempo Services Limited) irrespective of whether the Second Defendant was itself at fault". The employer's liability was assessed at 25% after reduction of the verdict for contributory negligence. 4 Neither defendant has appealed against the above verdicts. Nor has the plaintiff. 5 What does give rise to contention, however, is his Honour's order that "the first defendant is to be indemnified by the cross-defendant in respect of the payments of …… " in effect, all verdicts and judgments. That order is based on his Honour's construction of Clause 20(c) of a contract between the appellant, Tempo Services Limited, and the State. That clause is set out in extenso in the case of State of New South Wales v Tempo Services Ltd [2004] NSWCA 4 judgment in which is published simultaneously with this judgment. 6 The essential facts in the present case are the same as those in State of New South Wales v Tempo Services Limited. 7 It follows that in my view the judgment of Chesterman ADCJ must be affirmed, and the application for leave to appeal be dismissed with costs. 8 GILES JA: This application for leave to appeal was heard concurrently with the application in State of New South Wales v Tempo Services Ltd. Save for whether cl 20(c) of the contract gave an indemnity for costs where liability had not been found, the submissions were to the same effect. 9 The facts in the two cases were materially identical. The cleaner was injured after she had arrived at the school and found her assigned work and while she was going up some stairs to the area she was to clean. It was held that the stairs were negligently unsafe. For the reasons given by Hodgson JA in State of New South Wales v Tempo Services Ltd, the State's liability arose in connection with the performance of the services and was caught by cl 20(c). 10 The application for leave to appeal should be dismissed with costs. 11 HODGSON JA: I agree with Giles JA. ****** Last Modified: 02/13/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.