Bettergrow Pty Limited v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid (No 2) [2018] NSWSC 514

Supreme Court New South Wales

Medium Neutral Citation: Bettergrow Pty Limited v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid (No 2) [2018] NSWSC 514 Hearing dates: 19 to 23, 26 and 28 to 29 March 2018 Decision date: 26 April 2018 Before: Ball J Decision: (1) The proceedings be dismissed; (2) The plaintiff pay the costs of the first, second and fourth defendants; (3) The first cross-claim cross-summons filed by the second defendant on 17 February 2017 be dismissed; (4) The second cross-claim cross-summons filed by the first defendant on 20 February 2017 be dismissed; (5) There be no order for costs in relation to the cross-claims; and (6) The parties have liberty to apply to vary orders (2) and (5) within 14 days of the date of this judgment. Catchwords: TORTS – Negligence – Liability for others' negligence – Non-delegable duties of care TORTS – Negligence – Essentials of action for negligence – Duty of care – Definition of "physical damage to property" – Reasonable foreseeability of physical damage to property in recognised classes of case – Determination of existence of duty of care in novel cases – Whether a principal owes a duty of care to supervise its contractors and subcontractors – Breach of duty of care – Causation under Civil Liability Act 2002 (NSW) s 5D CONTRACTS – Implied terms – Terms implied in law – Terms implied in fact – Necessary to give business efficacy – Breach of contract CIVIL PROCEDURE – Pleadings – Amendment – Court's discretion to refuse application for amendment made after commencement of hearing TORTS – Negligence – Essentials of action for negligence – Duty of care – Whether a supplier of goods pursuant to a contract owes a duty of care to protect against economic loss arising from defects – Breach of duty of care TORTS – Defences – Apportionment of responsibility and damages under Civil Liability Act 2002 (NSW) s 35 TORTS – Defences – Contributory negligence under Civil Liability Act 2002 (NSW) s 5R – Reasonableness of plaintiff's assumption of counterparties' compliance with their legal obligations CIVIL PROCEDURE – Cross-claims – Court's discretion to refuse leave to file cross-claim after commencement of hearing Legislation Cited: Civil Liability Act 2002 (NSW) Protection of the Environment Operations Act 1997 (NSW) Protection of the Environment Operations (Waste) Regulation 2014 Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 Cases Cited: Armes v Nottinghamshire County Council [2017] UKSC 60 Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 at [79] Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 Hawkins v Clayton (1988) 164 CLR 539 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Rylands v Fletcher (1866) LR 1 Exch 265; affd (1868) LR3HL 330 Smith v Leurs (1945) 70 CLR 256 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Sydney Water v Asset Geotechnical Engineering [2013] NSWSC 1274 Transfield Constructions Pty Ltd v GIO Australia Holdings Pty Ltd [1996] NSWCA 538 Transfield Services (Australia) Pty Ltd v Hall (2008) 75 NSWLR 12; [2008] NSWCA 294 Woodland v Essex County Council [2014] AC 537; [2013] UKSC 66 Texts Cited: R P Balkin and J L R Davis, Law of Torts, (5th ed, 2013, LexisNexis) Category: Principal judgment Parties: Bettergrow Pty Limited (Plaintiff) NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid (First Defendant) Powercor Network Services Pty Ltd (Second Defendant) TTR Construction & Excavation Pty Limited (In Liquidation) (Third Defendant) On-Line Pipe & Cable Locating Pty Limited (Fourth Defendant) Representation: Counsel: D Weinberger (Plaintiff) D Priestley SC (First Defendant) A Shearer (Second Defendant) P Newton with M Foley (Fourth Defendant)