Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139

Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139

The respondent was contributorily negligent for failing to keep a proper lookout and for not taking precautions against the known risk of forklifts operating on the premises. Given the appellant's systemic failures as occupier, including insufficient pedestrian safety measures and the driver's failure to keep proper lookout, liability should be apportioned, with the respondent assessed at 30% contributory negligence.

Jurisdiction
Australia
Judgment Date
07 May 2014
Procedural Posture
Appeal / Judgment After Further Submissions; Determination of Contributory Negligence Following Earlier Appeal Decision
Outcome
Appeal allowed in part; District Court order set aside; substituted judgment for respondent against first defendant in the amount of $717,970 from 13 September 2012; no order as to costs of the appeal.
Legal Topics
['negligence' 'contributory Negligence' "occupier's Liability" 'apportionment of Liability' 'motor Vehicle Accidents']
['tort Law' 'personal Injury'] ['negligence' 'contributory Negligence' "occupier's Liability" 'apportionment of Liability' 'motor Vehicle Accidents']

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Procedural Posture

Appeal / Judgment After Further Submissions; Determination of Contributory Negligence Following Earlier Appeal Decision

Legal Issues

  1. 1 ['Whether the respondent was contributorily negligent for failing to keep proper lookout on premises where forklifts operated' 'Proper apportionment of responsibility between occupier and entrant in a workplace accident involving a forklift' 'Application of statutory schemes governing contributory negligence in motor accidents']

Ratio Decidendi

The respondent was contributorily negligent for failing to keep a proper lookout and for not taking precautions against the known risk of forklifts operating on the premises. Given the appellant's systemic failures as occupier, including insufficient pedestrian safety measures and the driver's failure to keep proper lookout, liability should be apportioned, with the respondent assessed at 30% contributory negligence.

Court Disposition

Appeal allowed in part; District Court order set aside; substituted judgment for respondent against first defendant in the amount of $717,970 from 13 September 2012; no order as to costs of the appeal.

Orders

  • ['Appeal allowed in part and set aside order (1) of the District Court (13 September 2012).' 'In place thereof, give judgment for the plaintiff against the first defendant in the amount of $717,970, such judgment to date from 13 September 2012.' 'No order as to the costs of the appeal.']