Transfield Services (Australia) v Hall; Hall v QBE Insurance (Australia) [2008] NSWCA 294

Reported Decision: 75 NSWLR 12

New South Wales Court of Appeal

CITATION: Transfield Services (Australia) v Hall; Hall v QBE Insurance (Australia) [2008] NSWCA 294 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 February 2008

JUDGMENT DATE: 10 November 2008

JUDGMENT OF: Beazley JA at 1; Campbell JA at 6; McClellan CJ at CL at 229

(1) Appeal upheld. (2) Set aside the orders in the Court below in favour of the Respondent. In lieu thereof, enter judgment for the Appellant. (3) Respondent to pay costs of the Appellant of the appeal and in the Court below. DECISION: (4) Cross-appeal upheld and order 2 made by Harrison AsJ set aside. (5) Judgment for the cross-appellant against the cross-respondent in the sum of $1,457,712 such judgment to date from 2 August 2007. (6) The order for costs made by Harrison AsJ in favour of cross-respondent set aside. (7) Order the cross-respondent to pay the costs of the cross-appellant both as to the appeal and as between those parties in the court below.

CATCHWORDS: TORTS – negligence – duty of care – non-delegable duties of care – respondent injured in fall from high ropes course when safety strop from which rope suspended broke – appellant contracted by Commonwealth to maintain plant and equipment at site – appellant engaged subcontractor to carry out inspection of ropes course and certify – whether subcontractor negligent – whether appellant owed non-delegable duty of care to respondent for negligence of subcontractor – whether general doctrine in Australian law that a person has a non-delegable duty to ensure reasonable care taken by an independent contractor employed to engage in an extra-hazardous or inherently dangerous activity – whether subcontractor employed to engage in extra-hazardous or inherently dangerous activity – whether scope for extending concept of non-delegable duties beyond existing categories – relevance of factors of control and vulnerability to finding of non-delegable duty – persuasiveness of authorities recognising proximity as the basis for a non-delegable duty – relevance of terms of contract between appellant and Commonwealth to finding of non-delegable duty – whether appellant vicariously liable for negligence of subcontractor – where alleged liability of appellant not put to trial judge on basis of vicarious liability – whether doing of the very act that the appellant directed the subcontractor to perform caused damage - INSURANCE – indemnity insurance – products liability – whether liability arose out of insured's business – where activities giving rise to liability were incidental to insured's business – whether ropes course a product within meaning of policy – whether exclusion clause applies – where exclusion clause admits of more than one interpretation – whether liability caused by or arose out of advice given for a fee – where liability in question has one cause that falls within an insuring clause and another cause that falls within the exclusion – where those causes are concurrent - WORDS AND PHRASES – "possession" – "control" – "advice"