Rail Corporation of New South Wales v Fluor Australia Pty Ltd [2008] NSWSC 1348

New South Wales Supreme Court

CITATION : Rail Corporation of New South Wales v Fluor Australia Pty Ltd [2008] NSWSC 1348

HEARING DATE(S) : 7/10/08, 9/10/08, 13/10/08

JUDGMENT DATE : 19 December 2008

JUDGMENT OF : McDougall J at 1

DECISION : See paras [321] to [322] of the judgment.

CATCHWORDS : NEGLIGENCE – Duty of care – whether an owner of rail infrastructure owed to a train operator a non-delegable duty to exercise reasonable care to ensure that the track was safe – duty to maintain. - NEGLIGENCE – Duty of care – duty to ensure proper performance of works – duty to inspect – duty not discharged by engaging independent subcontractor. - NEGLIGENCE – Breach of duty – professional duty – liability – whether defendant's liability is a civil liability incurred in the conduct of its profession – it is not necessary for the conduct to involve any element of professional skill, but must be carried out in the performance of professional duties. - DAMAGES – Whether defendants required to pay damages to plaintiff for loss suffered as a result of plaintiff's unreasonable settlement with third party – settlement – reasonableness – objective test – range of potentially reasonable settlement sums. - DAMAGES – Economic loss – whether subcontractor owes proprietor a duty of care to avoid pure economic loss – vulnerability – whether plaintiff in a position to protect itself from loss in the event of negligence – damages are only recoverable for economic loss arising from injury to plaintiff's person or property. - CONTRACTS – insurance contracts – whether a non-party to an insurance policy can sue to enforce a promise of indemnity expressed to be for their benefit – privity of contract. - CONTRACTS – Insurance contracts – claim under policy – limitation of liability – where an express exclusion of liability exists in respect of one cause, an insurer is not liable to an insured even where there is no exclusion in respect of a concurrent cause. - PRACTICE – Procedure – parties to proceedings – joinder of – where the construction and effect of a contract is in issue in proceedings, parties to those contracts should be joined. - EVIDENCE – inferences of negligence open on proved circumstances – whether inference should be drawn – failure of defendant to give evidence – Jones v Dunkel.