Cate Doosey v Nigel Walsh & Complete Building Inspection Services Pty. Ltd.;; Evangeline Doosey-Shaw by her next friend Cate Doosey v Nigel Walsh & Complete Building Inspection Services Pty. Ltd. [2017] NSWDC 8

Cate Doosey v Nigel Walsh & Complete Building Inspection Services Pty. Ltd.;; Evangeline Doosey-Shaw by her next friend Cate Doosey v Nigel Walsh & Complete Building Inspection Services Pty. Ltd. [2017] NSWDC 8

The defendants (building inspectors) were negligent in failing to discover and report the hazardous condition of the balcony balustrade, which would have been apparent on a competent inspection; this breach of duty caused the plaintiffs' injuries. The notation on the report about reliance after 30 days did not exclude liability or establish contributory negligence, as no material change in the property condition was proven. The insurer’s exclusion clauses did not operate to deny indemnity for this claim.

Jurisdiction
Australia
Judgment Date
03 February 2017
Procedural Posture
Civil / Principal Judgment After Trial on Liability and Assessment of Damages (for Cate Doosey); Liability Only for Evangeline Doosey Shaw, Damages to Be Assessed Later
Outcome
Judgment for the plaintiffs against the defendants jointly and severally; judgment for cross-claimants against cross-defendant (insurer); defendants' cross-claim for contribution against Cate Doosey dismissed; damages for Cate Doosey assessed; damages for Evangeline Doosey-Shaw to be assessed later; costs as ordered.
Legal Topics
['professional Liability' 'personal Injury' 'pure Mental Harm' 'contributory Negligence' 'construction of Exclusion Clause' 'duty of Care' 'assessment of Damages']
['negligence' 'contract' 'insurance' 'torts'] ['professional Liability' 'personal Injury' 'pure Mental Harm' 'contributory Negligence' 'construction of Exclusion Clause' 'duty of Care' 'assessment of Damages']

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Procedural Posture

Civil / Principal Judgment After Trial on Liability and Assessment of Damages (for Cate Doosey); Liability Only for Evangeline Doosey Shaw, Damages to Be Assessed Later

Legal Issues

  1. 1 ['Whether the defendants (building inspectors) were negligent in failing to identify a hazardous balcony balustrade in a pre-purchase inspection report' 'Whether the building inspectors owed a duty of care to the child plaintiff (Evangeline Doosey-Shaw)' 'Whether the plaintiff Cate Doosey was contributorily negligent in relying on the report outside 30 days' 'Construction and operation of exclusion clauses in the defendants’ insurance policy']

Ratio Decidendi

The defendants (building inspectors) were negligent in failing to discover and report the hazardous condition of the balcony balustrade, which would have been apparent on a competent inspection; this breach of duty caused the plaintiffs' injuries. The notation on the report about reliance after 30 days did not exclude liability or establish contributory negligence, as no material change in the property condition was proven. The insurer’s exclusion clauses did not operate to deny indemnity for this claim.

Court Disposition

Judgment for the plaintiffs against the defendants jointly and severally; judgment for cross-claimants against cross-defendant (insurer); defendants' cross-claim for contribution against Cate Doosey dismissed; damages for Cate Doosey assessed; damages for Evangeline Doosey-Shaw to be assessed later; costs as ordered.

Orders

  • ['In proceedings 2014/224296, judgment for Cate Doosey against the defendants jointly and severally in a sum to be calculated by agreement in accordance with reasons.' 'In proceedings 2014/224312, judgment for Evangeline Doosey-Shaw (by her next friend Cate Doosey) against the defendants jointly and severally,...