Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117

Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117

The majority held that the Builder was not liable because the Supplier's employee controlled the unloading operation and the relevant risk arose from activities on the Supplier's truck, not from site control or coordination; even if a duty existed, breach was not established. The Supplier did not show appellable error in the primary judge's acceptance of the Plaintiff's credibility or in findings that the accident caused significant ongoing disability, including aggravation of back problems and psychological consequences, so the damages awards and the Employer's recovery judgment stood. However, the Bullock order was set aside because the Supplier had not by its conduct made it reasonable...

Jurisdiction
Australia
Judgment Date
22 May 2009
Procedural Posture
Appeal in Negligence Personal Injury Proceedings and Workers Compensation Recovery Proceedings / Court of Appeal From District Court Orders of Robison DCJ Dated 28 February 2008
Outcome
Supplier's appeal allowed only to set aside the Bullock costs indemnity order; otherwise dismissed. Plaintiff's cross-appeal dismissed. Supplier's appeal against the Employer dismissed with costs.
Legal Topics
['duty of Care on Building Site' 'supplier Unloading Building Materials' 'personal Injury Damages' 'future Economic Loss' 'vicissitudes' 'bullock Order' 'recovery of Workers Compensation Payments']
['torts' 'negligence' 'damages' 'costs' 'workers Compensation'] ['duty of Care on Building Site' 'supplier Unloading Building Materials' 'personal Injury Damages' 'future Economic Loss' 'vicissitudes' 'bullock Order' 'recovery of Workers Compensation Payments']

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Procedural Posture

Appeal in Negligence Personal Injury Proceedings and Workers Compensation Recovery Proceedings / Court of Appeal From District Court Orders of Robison DCJ Dated 28 February 2008

Legal Issues

  1. 1 ["Whether the Builder owed or breached a duty of care to the Plaintiff in respect of activities on the Supplier's truck during unloading of glass doors." 'Whether the damages awarded to the Plaintiff were excessive or affected by erroneous findings about causation, credibility, back injury, psychological injury and dental injury.' 'Whether the primary judge erred in ordering the Supplier to indemnify the Plaintiff for costs payable by the Plaintiff to the Builder.' "Whether the Supplier's appeal against the Employer concerning the quantum of workers compensation recovery should succeed."]

Ratio Decidendi

The majority held that the Builder was not liable because the Supplier's employee controlled the unloading operation and the relevant risk arose from activities on the Supplier's truck, not from site control or coordination; even if a duty existed, breach was not established. The Supplier did not show appellable error in the primary judge's acceptance of the Plaintiff's credibility or in findings that the accident caused significant ongoing disability, including aggravation of back problems and psychological consequences, so the damages awards and the Employer's recovery judgment stood. However, the Bullock order was set aside because the Supplier had not by its conduct made it reasonable...

Court Disposition

Supplier's appeal allowed only to set aside the Bullock costs indemnity order; otherwise dismissed. Plaintiff's cross-appeal dismissed. Supplier's appeal against the Employer dismissed with costs.

Orders

  • ["In the Supplier's appeal against the Builder and the Plaintiff, set aside the order that the Supplier indemnify the Plaintiff in respect of costs to be paid by the Plaintiff to the Builder." "Otherwise dismiss the Supplier's appeal." "Supplier to pay the Builder's costs of the appeal and three-quarters of the...