Booksan Pty Ltd, Jaymay Constructions Pty Ltd v Wehbe, Elmir & Others; GIO General Ltd and & GIO Workers Compensation (NSW) Ltd v Wehbe, Elmir & Others. [2006] NSWCA 3

Booksan Pty Ltd, Jaymay Constructions Pty Ltd v Wehbe, Elmir & Others; GIO General Ltd and & GIO Workers Compensation (NSW) Ltd v Wehbe, Elmir & Others. [2006] NSWCA 3

Booksan and Jaymay, as occupier and employer/supervisor, owed and breached their duties of care to the plaintiffs by failing to adequately affix the hoist and operating it while overloaded. Plaintiffs were guilty of contributory negligence warranting a reduction of their damages by 15%. Jaymay is entitled to indemnity under the GIO General insurance policy, as policy exclusions were not triggered by the acts of its employee. Defendants did not breach relevant statutory regulations sufficient to support liability under those provisions. Contributory negligence was available as a defence to breach of statutory duty only where the cause of action accrued after 6 December 2002.

Jurisdiction
Australia
Judgment Date
21 February 2006
Procedural Posture
Appeal and Cross Appeal / Judgment After Hearing on Liability and Indemnity Issues
Outcome
Appeal and cross-appeals dismissed except as to contributory negligence and indemnity for Jaymay; damages to each plaintiff to be reduced by 15% and Jaymay to be indemnified by GIO General.
Legal Topics
['contributory Negligence' 'employer Liability' "occupier's Liability" 'insurance Indemnity' 'construction Safety Regulations' 'standing of Insurer on Appeal']
['negligence' 'insurance Law' 'civil Liability' 'statutory Duty'] ['contributory Negligence' 'employer Liability' "occupier's Liability" 'insurance Indemnity' 'construction Safety Regulations' 'standing of Insurer on Appeal']

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Procedural Posture

Appeal and Cross Appeal / Judgment After Hearing on Liability and Indemnity Issues

Legal Issues

  1. 1 ['Whether Booksan and Jaymay owed and breached duties of care to the plaintiffs' 'Whether plaintiffs were guilty of contributory negligence' 'Whether insurer (GIO General) is liable to indemnify Jaymay' 'Whether certain statutory regulations were breached' 'Whether contributory negligence applies to breaches of statutory duty']

Ratio Decidendi

Booksan and Jaymay, as occupier and employer/supervisor, owed and breached their duties of care to the plaintiffs by failing to adequately affix the hoist and operating it while overloaded. Plaintiffs were guilty of contributory negligence warranting a reduction of their damages by 15%. Jaymay is entitled to indemnity under the GIO General insurance policy, as policy exclusions were not triggered by the acts of its employee. Defendants did not breach relevant statutory regulations sufficient to support liability under those provisions. Contributory negligence was available as a defence to breach of statutory duty only where the cause of action accrued after 6 December 2002.

Court Disposition

Appeal and cross-appeals dismissed except as to contributory negligence and indemnity for Jaymay; damages to each plaintiff to be reduced by 15% and Jaymay to be indemnified by GIO General.

Orders

  • ["Defendants' appeals against finding of no contributory negligence upheld; damages to each plaintiff to be apportioned 15% for contributory negligence." "Jaymay's appeal against the decision that it is not entitled to an indemnity from GIO General upheld; GIO General is liable to indemnify Jaymay." 'All other...