Volman t/a Volman Engineering v. Lobb & Anor.; Mobil Oil Australia Pty. Ltd. v. Lobb & Anor [2005] NSWCA 348

Volman t/a Volman Engineering v. Lobb & Anor.; Mobil Oil Australia Pty. Ltd. v. Lobb & Anor [2005] NSWCA 348

Volman was negligent and liable in public nuisance because it accepted responsibility for precautions to prevent mud escaping from the site, failed to exercise reasonable skill and care in making the silt trap effective and clearing mud, and thereby caused footpaths to be regularly covered with mud. Mobil was liable in public nuisance because, as occupier, the nature of the operations required it to take reasonable steps to ascertain whether they were causing a nuisance, and it ought to have known of the hazard in time to take reasonable steps that would have prevented the accident. The 50% contributory negligence assessment was open, the contractual indemnity did not give Mobil more than...

Jurisdiction
Australia
Judgment Date
31 October 2005
Procedural Posture
Personal Injury Claim in Negligence and Public Nuisance With Cross Claims for Contribution And/or Indemnity / Appeals and Cross Appeals From District Court Judgments
Outcome
Appeal CA40651/04 allowed in part and cross-appeal allowed in part; appeal CA40904/04 dismissed and cross-appeal dismissed; damages judgment reduced; cross-claim orders replaced by declaration of equal liability between Volman and Mobil.
Legal Topics
['pedestrian Slipping on Mud on Footpath' 'public Nuisance' 'occupier Liability' 'contributory Negligence' 'contractual Indemnity' 'contribution Between Defendants' 'assessment of Damages']
['tort' 'negligence' 'nuisance' 'personal Injury' 'contract'] ['pedestrian Slipping on Mud on Footpath' 'public Nuisance' 'occupier Liability' 'contributory Negligence' 'contractual Indemnity' 'contribution Between Defendants' 'assessment of Damages']

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Procedural Posture

Personal Injury Claim in Negligence and Public Nuisance With Cross Claims for Contribution And/or Indemnity / Appeals and Cross Appeals From District Court Judgments

Legal Issues

  1. 1 ["Whether the primary judge erred in rejecting Mr. Lobb's negligence claim against Volman" 'Whether footpaths regularly covered with mud from the site constituted a public nuisance for which Volman was liable' 'Whether Mobil was liable for the public nuisance as occupier of the site' "Whether the assessment of Mr. Lobb's contributory negligence at 50% was wrong" 'Whether Volman and Mobil were equally responsible as between themselves or whether Mobil was entitled to a greater contractual indemnity' 'Whether the damages assessment should be reduced']

Ratio Decidendi

Volman was negligent and liable in public nuisance because it accepted responsibility for precautions to prevent mud escaping from the site, failed to exercise reasonable skill and care in making the silt trap effective and clearing mud, and thereby caused footpaths to be regularly covered with mud. Mobil was liable in public nuisance because, as occupier, the nature of the operations required it to take reasonable steps to ascertain whether they were causing a nuisance, and it ought to have known of the hazard in time to take reasonable steps that would have prevented the accident. The 50% contributory negligence assessment was open, the contractual indemnity did not give Mobil more than...

Court Disposition

Appeal CA40651/04 allowed in part and cross-appeal allowed in part; appeal CA40904/04 dismissed and cross-appeal dismissed; damages judgment reduced; cross-claim orders replaced by declaration of equal liability between Volman and Mobil.

Orders

  • ['Appeal CA40651/04 allowed in part, and the cross-appeal allowed in part.' 'Judgment below for $122,268.77 against Volman and Mobil set aside, and in lieu thereof judgment for $117,156.02 against Volman and Mobil.' "Judgment on the cross-claims below set aside, and in lieu thereof declaration that as between Volman...