NSW Caselaw
Reported Decision : (2006) 14 ANZ Insurance Cases 61-678 (2006) Aust Torts Reports 81-830
New South Wales Court of Appeal
CITATION: Booksan Pty Ltd, Jaymay Constructions Pty Ltd v Wehbe, Elmir & Others; GIO General Ltd and & GIO Workers Compensation (NSW) Ltd v Wehbe, Elmir & Others. [2006] NSWCA 3 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 05/12/05, 06/12/05, 07/12/05
JUDGMENT DATE: 21 February 2006
JUDGMENT OF: Giles JA at 1; Ipp JA at 2; Tobias JA at 222
DECISION: (1) The defendants' appeals against the finding that the plaintiffs were not guilty of contributory negligence are upheld. The damages awarded to each plaintiff should be subject to an apportionment of 15 per cent (2) Jaymay's appeal against the decision that it is not entitled to an indemnity from GIO General is upheld. GIO General is liable to indemnify Jaymay (3) All other appeals and cross-appeals are dismissed (4) The defendants are to file written submissions in regard to costs within 21 days of the delivery of this judgment and all other parties are to file their written submissions in reply within 21 days thereafter.
CATCHWORDS: NEGLIGENCE - liability of occupier of private land - liability of employer - whether duty of care was breached - discussion of factors relevant to duty or to breach - whether defendants breached various statutory duties under the Construction Safety Regulations 1950 (NSW) - contributory negligence - availability of contributory negligence as a defence for a claim based on a breach of statutory duty - the extent to which Part 1A of the Civil Liability Act 2002 (NSW) is retrospective - s 5A of the Civil Liability Act 2002 (NSW) - INSURANCE - standing of an insurer on appeal to argue issues between a plaintiff and an insured defendant that could result in the insurer being liable to provide an indemnity - whether insureds breached conditions of the insurance policies - STATUTES - effect of s 22 of the Occupational Health and Safety Act 1983 (NSW) on the application of Division 1 of that Act to civil claims. D
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