Shaw v McGee & Anor [2011] NSWDC 155

District Court New South Wales

Medium Neutral Citation: Shaw v McGee & Anor [2011] NSWDC 155 Hearing dates: 6/6/11-9/6/11, 19/9/11-20/9/11 Decision date: 07 October 2011 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 164 Catchwords: Direct and vicarious liability, occupiers' liability Legislation Cited: Civil Liability Act 2002 Cases Cited: Australia Safeway Stores Pty Ltd v Zeluzna (1987) 162 CLR 479 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Johnson v Perez (1988) 166 CLR 351 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Mason v Demasi [2009] NSWCA 227 Nationwide News Pty Ltd v Naidu & Anor [2007] NSWCA 377 New South Wales v Lepore (2003) 212 CLR 511 Tesco Ltd v Nattrass [1972] AC 153 Texts Cited: Assessment of Damages for Personal Injury and Death (4th ed) Category: Principal judgment Parties: Stephanie Shaw (Plaintiff) Murray McGee (First Defendant) Windbid Pty Ltd (Second Defendant) Representation: T Boyd and J Cairn (Plaintiff) S Bell (Second Defendant) H H Weller Solicitor (Plaintiff) Websters (Second Defendant) File Number(s): 2010/00229149

Judgment 1The plaintiff seeks damages for the consequences of the actions of a Mr Murray McGee. Although Mr McGee was named as the first defendant he was never served. The remaining defendant is alleged to be Mr McGee's employer. It is said to be directly responsible or, alternatively, vicariously responsible for his actions. It is also alleged to have been negligent in its own right. 2An allegation of breach of contract was not pressed. 3For convenience I will refer to the named second defendant as the defendant and to the unserved first defendant as Mr McGee. Besides Mr McGee I have anonymised the names of lay persons who did not give evidence. 4The defendant owns and occupies a caravan park called the Windsor Riverside Van Park (the "Park"). Mr McGee worked (using a neutral expression) at the Park. 5The defendant denies liability arising from Mr McGee's deeds on any basis. It denies that it employed Mr McGee. It says it only dealt with him as an independent contractor. It says it was not negligent. The defendant also says the amount of the plaintiff's claim for damages is excessive. 6If the defendant is directly or vicariously liable for the actions of Mr McGee then the plaintiff says the action is governed by the Common Law and not the Civil Liability Act 2002 (the "CLA"). This is because of Section 3B of this Act. The plaintiff accepts that the CLA does apply if the defendant is liable as a result of its own negligence.