Thiess Pty Ltd v Dobbins Contracting Pty Ltd [2016] NSWSC 265

Supreme Court New South Wales

Medium Neutral Citation: Thiess Pty Ltd v Dobbins Contracting Pty Ltd [2016] NSWSC 265 Hearing dates: 08/02/2016, 09/02/2016, 10/02/2016, 11/02/2016, 12/02/2016, 16/02/2016, 17/02/2016, 18/02/2016, 23/02/2016 and 24/02/2016 Date of orders: 17 March 2016 Decision date: 17 March 2016 Jurisdiction: Equity - Technology and Construction List Before: McDougall J Decision: Judgment for second defendant on plaintiffs' claim. Catchwords: NEGLIGENCE – duty of care – application of ss 5B and 5D of Civil Liability Act – whether Second Defendant owed duty of care to the Plaintiffs – where Second Defendant followed instructions of senior worker – where Second Defendant found to have exercised such duties with reasonable care and diligence – no breach of duty by Second Defendant – causation does not arise

CONTRACT – breach of contract – whether Second Defendant breached express or alleged implied terms of the contract – whether course of dealing existed to give effect to those terms – court held implied term of contract that Second Defendant would exercise reasonable care and skill in undertaking work under the contract – determination of breach of contract unnecessary as liability falls under ss 5B and 5D of Civil Liability Act

BAILMENTS – bailment for reward – whether employees take constructive possession of excavator – in circumstances of the case bailment not made out – each employee was taking a necessary safety precaution, not asserting a possessory right Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [42] Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association (Henry Kendall in the Court of Appeal) [1966] 1 WLR 287 Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 HG v The Queen (1999) 197 CLR 414 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 Category: Principal judgment Parties: Thiess Pty Ltd (First Plaintiff) Hunter Valley Earthmoving Co Pty Ltd (Second Plaintiff) Dobbins Contracting Pty Ltd (First Defendant) Daryl Stuart Bate (Second Defendant) Representation: Counsel: