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

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

The plaintiffs failed to prove that the fire was more likely caused by the second gouging operation, or by both gouging operations, rather than by the first gouging operation. In any event, Lance Bate was not asked to fire spot during the first gouging operation, did fire spot during the second operation from the position agreed with Mr Bradbury, and performed the duties assigned to him with reasonable care. Mr Bradbury, the experienced boilermaker and team leader, was responsible for deciding the precautions, the fire spotting position, and the duration of post-work inspection. Applying s 5B of the Civil Liability Act 2002 (NSW), no breach by Mr Bate was established. No bailment arose...

Jurisdiction
Australia
Judgment Date
17 March 2016
Procedural Posture
Equity Technology and Construction List Negligence, Contract and Bailment Claim Arising From Fire Damage to Excavator / Principal Judgment After Hearing on Plaintiffs' Claim Against the Second Defendant
Outcome
Judgment for the second defendant on the plaintiffs' claim.
Legal Topics
['duty of Care' 'breach of Contract' 'civil Liability Act 2002 (nsw) Ss 5 B and 5 D' 'causation' 'contributory Negligence' 'proportionate Liability' 'bailment for Reward' 'expert Evidence' 'course of Dealing' 'mitigation and Consequential Loss']
['negligence' 'contract' 'bailment' 'civil Liability' 'damages'] ['duty of Care' 'breach of Contract' 'civil Liability Act 2002 (nsw) Ss 5 B and 5 D' 'causation' 'contributory Negligence' 'proportionate Liability' 'bailment for Reward' 'expert Evidence' 'course of Dealing' 'mitigation and Consequential Loss']

Case Brief

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Procedural Posture

Equity Technology and Construction List Negligence, Contract and Bailment Claim Arising From Fire Damage to Excavator / Principal Judgment After Hearing on Plaintiffs' Claim Against the Second Defendant

Legal Issues

  1. 1 ['Which hot work operation caused the fire on the excavator.' 'What role Lance Bate played in the hot work that caused the fire.' 'What were the terms of the contract between HVE and Mr Bate for the work performed on 30 August 2008.' 'Whether Mr Bate breached his contract with HVE.' 'What duty of care, if any, Mr Bate owed to Thiess and HVE and whether he breached it.' "Whether the plaintiffs' losses were reasonably foreseeable or within Mr Bate's reasonable contemplation." 'Whether a bailment for reward arose when Lance Bate and Mr Bradbury applied personal locks to the excavator.' 'Whether the plaintiffs proved factual causation and scope of liability causation under s 5D of the Civil Liability Act 2002 (NSW).' 'Whether HVE was contributorily negligent.' 'Whether Part 4 of the Civil Liability Act 2002 (NSW) limited any liability of the second defendant.' 'What damages, if any, the plaintiffs could recover from the second defendant.']

Ratio Decidendi

The plaintiffs failed to prove that the fire was more likely caused by the second gouging operation, or by both gouging operations, rather than by the first gouging operation. In any event, Lance Bate was not asked to fire spot during the first gouging operation, did fire spot during the second operation from the position agreed with Mr Bradbury, and performed the duties assigned to him with reasonable care. Mr Bradbury, the experienced boilermaker and team leader, was responsible for deciding the precautions, the fire spotting position, and the duration of post-work inspection. Applying s 5B of the Civil Liability Act 2002 (NSW), no breach by Mr Bate was established. No bailment arose...

Court Disposition

Judgment for the second defendant on the plaintiffs' claim.

Orders

  • ["Judgment with costs for the second defendant on the plaintiffs' claim against it." 'Any party contending for a different costs order was to serve and submit draft costs orders, evidence and submissions by 25 March 2016; the other party was to serve and submit evidence and submissions by 8 April 2016; any such...