Shoveller v Dak-Wal Constructions Pty Ltd (No 3) [2021] NSWSC 352

Shoveller v Dak-Wal Constructions Pty Ltd (No 3) [2021] NSWSC 352

Dak-Wal Constructions Pty Ltd, as principal contractor, was responsible for site safety and failed to rectify an unsafe balustrade or alert the Owners, creating a foreseeable risk of harm; Owners failed to inspect after works, but had previously remedied the risk. Dak-Wal's negligence was causative and was found to bear 100% liability; Owners also breached duty but lesser culpability. Akota not responsible for removal or repair of balustrade.

Jurisdiction
Australia
Judgment Date
08 April 2021
Procedural Posture
Principal Judgment / Final Judgment, Orders
Outcome
Judgment for plaintiff against first defendant and third to seventh defendants; judgment for second defendant against plaintiff; liability apportioned 100% to Dak-Wal; damages agreed at $3,000,000 plus costs.
Legal Topics
['negligence' "occupiers' Liability" 'duty of Care' 'builder Liability' 'causation' 'commercial Premises Injury' 'apportionment']
['tort Law'] ['negligence' "occupiers' Liability" 'duty of Care' 'builder Liability' 'causation' 'commercial Premises Injury' 'apportionment']

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Procedural Posture

Principal Judgment / Final Judgment, Orders

Legal Issues

  1. 1 ['Whether defendants breached duty of care to plaintiff as occupier or builder' 'Relative liability for hazardous balustrade after handover' 'Whether Owners failed to inspect the premises to avoid foreseeable harm' 'Causation and apportionment of liability between Owners and builder']

Ratio Decidendi

Dak-Wal Constructions Pty Ltd, as principal contractor, was responsible for site safety and failed to rectify an unsafe balustrade or alert the Owners, creating a foreseeable risk of harm; Owners failed to inspect after works, but had previously remedied the risk. Dak-Wal's negligence was causative and was found to bear 100% liability; Owners also breached duty but lesser culpability. Akota not responsible for removal or repair of balustrade.

Court Disposition

Judgment for plaintiff against first defendant and third to seventh defendants; judgment for second defendant against plaintiff; liability apportioned 100% to Dak-Wal; damages agreed at $3,000,000 plus costs.

Orders

  • ['Judgment on the Statement of Claim for plaintiff against first defendant and third to seventh defendants' 'Judgment on the Statement of Claim for second defendant against plaintiff' 'Judgment on First Cross-Claim for third to seventh defendants/cross-claimants against first defendant/second cross-defendant'...