Rail Corporation New South Wales v Fluor Australia Pty Ltd & Anor [2009] NSWCA 344

New South Wales Court of Appeal

CITATION: Rail Corporation New South Wales v Fluor Australia Pty Ltd & Anor [2009] NSWCA 344

HEARING DATE(S): 27 and 28 August 2009

JUDGMENT DATE: 30 October 2009

JUDGMENT OF: Allsop P at 1; Hodgson JA at 4; Macfarlan JA at 7

(1) Appeal allowed. DECISION: (2) In addition to the orders made at first instance on 17 February 2009, judgment for the appellant against the respondents in the sum of $5,207,287 together with interest. (3) Grant liberty to the appellant to apply within fourteen days of the date of these orders for variation of the costs order made at first instance and for an order quantifying the interest payable upon the judgment referred to in order (2). (4) Order that the respondents pay the appellant's costs of the appeal.

CATCHWORDS: CONTRACTS - promisor's obligations performed by subcontractor - subcontractor's work defective - whether promisor liable for breach of contract - TORTS - negligence - whether railway authority owed non-delegable duty to major user of railway - DAMAGES - amount paid by plaintiff to third party in settlement of claim - whether amount recoverable in contract and tort against wrongdoers - whether plaintiff's settlement with third party reasonable - INSURANCE - professional indemnity policy - civil engineering works - meaning of "profession" - TORTS - recoverability of pure economic loss considered - claim by third party on plaintiff consequent on damage to plaintiff's railway track caused by defective work of tortfeasor

Rail Safety Act 1993 LEGISLATION CITED: State Owned Corporations Act 1989 Transport Administration Act 1988

CATEGORY: Principal judgment