TOGA BUILDING CO PTY LTD v KARHUGH PTY LTD and ANOR [1996] NSWCA 533

TOGA BUILDING CO PTY LTD v KARHUGH PTY LTD and ANOR [1996] NSWCA 533

The head contractor was not entitled to indemnity from the subcontractor, as the liability arose due to its own neglect, as excluded by the indemnity clause; further, the contractual remedies for breach of site safety requirements were limited to the forms agreed in the contract and no further damages could be awarded under the contract. The apportionment of 70% liability to the employer (subcontractor) and 30% to the head contractor was correct and disclosed no error.

Parties
Appellant / Head Contractor: Toga Building Co Pty Ltd; First Respondent / Subcontractor / Employer: Karhugh Pty Ltd; Second Respondent / Employee / Plaintiff Below: Reino Karhunen
Jurisdiction
Australia
Judgment Date
25 July 1996
Procedural Posture
Appeal / Judgment on Appeal From Trial Judgment and Dismissal of Cross Claim for Indemnity
Outcome
Appeal dismissed with costs
Legal Topics
Personal Injury, Apportionment of Liability, Employer's Liability, Indemnity Under Construction Contracts, Construction Site Safety, Waiver of Contractual Provisions
Negligence Contract Personal Injury Apportionment of Liability Employer's Liability Indemnity Under Construction Contracts Construction Site Safety Waiver of Contractual Provisions

Case Brief

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Parties

Toga Building Co Pty Ltd

Appellant / Head Contractor

Karhugh Pty Ltd

First Respondent / Subcontractor / Employer

Reino Karhunen

Second Respondent / Employee / Plaintiff Below

Procedural Posture

Appeal / Judgment on Appeal From Trial Judgment and Dismissal of Cross Claim for Indemnity

Legal Issues

  1. 1 Whether the head contractor is entitled to indemnity or contribution from the subcontractor for liability to an injured employee under the subcontract and general law
  2. 2 Whether breach of site safety requirements under the subcontract attracted the indemnity clause
  3. 3 Whether compliance with a condition relating to ladders was waived or otherwise gave rise to damages under the contract

Ratio Decidendi

The head contractor was not entitled to indemnity from the subcontractor, as the liability arose due to its own neglect, as excluded by the indemnity clause; further, the contractual remedies for breach of site safety requirements were limited to the forms agreed in the contract and no further damages could be awarded under the contract. The apportionment of 70% liability to the employer (subcontractor) and 30% to the head contractor was correct and disclosed no error.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs