INQUA Pty Ltd (543) v McFADDEN [1990] NSWCA 98

INQUA Pty Ltd (543) v McFADDEN [1990] NSWCA 98

The trial judge erred in apportionment as the subcontractor (Inqua) bore principal responsibility for the risk and creation of danger, having left a rope across the road and failed to provide adequate warning to motorists. Accordingly, liability should be apportioned 75% to Inqua and 25% to Balfour. Damages for past economic loss were not supported by evidence of likely return to work and should be disallowed; future economic loss could only be generally assessed due to insufficient evidence, and a lower sum was awarded.

Parties
Appellant/subcontractor: INQUA Pty Ltd; Appellant/head Contractor: Balfour Beatty Power Constructions Australia Pty Ltd; Respondent/plaintiff: McFadden
Jurisdiction
Australia
Judgment Date
16 March 1990
Procedural Posture
Appeal / Judgment on Appeal From Trial Court Decision
Outcome
Appeals allowed in part; damages and apportionment varied.
Legal Topics
Joint Liability, Negligence, Apportionment of Liability, Damages Assessment, Personal Injury – Whiplash – Economic Loss
Tort Law Personal Injury Law Joint Liability Negligence Apportionment of Liability Damages Assessment Personal Injury – Whiplash – Economic Loss

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Parties

INQUA Pty Ltd

Appellant/subcontractor

Balfour Beatty Power Constructions Australia Pty Ltd

Appellant/head Contractor

McFadden

Respondent/plaintiff

Procedural Posture

Appeal / Judgment on Appeal From Trial Court Decision

Legal Issues

  1. 1 Whether the apportionment of liability between head contractor and subcontractor was correct
  2. 2 Whether damages for past and future economic loss were properly assessed

Ratio Decidendi

The trial judge erred in apportionment as the subcontractor (Inqua) bore principal responsibility for the risk and creation of danger, having left a rope across the road and failed to provide adequate warning to motorists. Accordingly, liability should be apportioned 75% to Inqua and 25% to Balfour. Damages for past economic loss were not supported by evidence of likely return to work and should be disallowed; future economic loss could only be generally assessed due to insufficient evidence, and a lower sum was awarded.

Court Disposition

Appeals allowed in part; damages and apportionment varied.

Orders

  • Judgments below set aside.
  • Judgment for McFadden against each defendant in the sum of $48,342.00, effective from 23 September 1987.