Action Workforce Pty Ltd v DHL Exel Supply Chain (Australia) Pty Ltd; DHL Exel Supply Chain (Australia) Pty Ltd v Action Workforce Pty Ltd [2017] NSWCA 321

Action Workforce Pty Ltd v DHL Exel Supply Chain (Australia) Pty Ltd; DHL Exel Supply Chain (Australia) Pty Ltd v Action Workforce Pty Ltd [2017] NSWCA 321

Action Workforce's employee negligently damaged the sprinkler pipe while performing services for DHL, and Action Workforce was vicariously liable for that negligence. Under cl 9.4 of the Warehousing Agreement, DHL was liable to Sony for loss or damage caused by the acts or omissions of its subcontractors, and the exception in cl 8.2 applied to negligence of DHL's subcontractor or its employee, so Sony was not required first to claim on insurance and DHL did not have a complete defence. DHL's settlement with Sony was reasonable. The indemnity in cl 11.1 of the Services Agreement required Action Workforce to indemnify DHL in full for liability, loss, damages, costs and expenses paid by DHL...

Jurisdiction
Australia
Judgment Date
12 December 2017
Procedural Posture
Appeal and Cross Appeal Concerning Contractual Indemnity for Settled Claims for Damage to Warehoused Goods / Court of Appeal, Supreme Court of New South Wales, From a District Court Decision of Gibb DCJ Dated 06 April 2017
Outcome
Appeal dismissed; cross-appeal dismissed; appellant ordered to pay the respondent's costs of the appeal.
Legal Topics
['contractual Indemnity' 'reasonable Settlement' 'warehousing Agreement' 'subcontractor Negligence' 'vicarious Liability' 'mitigation of Loss' 'apportionable Claims']
['contract Law' 'guarantee and Indemnity' 'negligence' 'civil Liability'] ['contractual Indemnity' 'reasonable Settlement' 'warehousing Agreement' 'subcontractor Negligence' 'vicarious Liability' 'mitigation of Loss' 'apportionable Claims']

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Procedural Posture

Appeal and Cross Appeal Concerning Contractual Indemnity for Settled Claims for Damage to Warehoused Goods / Court of Appeal, Supreme Court of New South Wales, From a District Court Decision of Gibb DCJ Dated 06 April 2017

Legal Issues

  1. 1 ["Whether DHL's settlement of Sony's claim was reasonable so as to engage Action Workforce's indemnity under cl 11.1 of the Services Agreement." 'Whether DHL was liable to Sony under the Warehousing Agreement in the absence of a finding that DHL itself was negligent.' "Whether cl 8.2 of the Warehousing Agreement required Sony to claim against its insurer and afforded DHL a complete defence to Sony's claim." "Whether the indemnity in cl 11.1 of the Services Agreement was limited to liability attributable only to Action Workforce's negligence and excluded any liability involving DHL's own negligence." "Whether Action Workforce's employee was negligent and Action Workforce was vicariously liable for that negligence."]

Ratio Decidendi

Action Workforce's employee negligently damaged the sprinkler pipe while performing services for DHL, and Action Workforce was vicariously liable for that negligence. Under cl 9.4 of the Warehousing Agreement, DHL was liable to Sony for loss or damage caused by the acts or omissions of its subcontractors, and the exception in cl 8.2 applied to negligence of DHL's subcontractor or its employee, so Sony was not required first to claim on insurance and DHL did not have a complete defence. DHL's settlement with Sony was reasonable. The indemnity in cl 11.1 of the Services Agreement required Action Workforce to indemnify DHL in full for liability, loss, damages, costs and expenses paid by DHL...

Court Disposition

Appeal dismissed; cross-appeal dismissed; appellant ordered to pay the respondent's costs of the appeal.

Orders

  • ['Appeal dismissed' 'Cross-appeal dismissed' "Appellant pay the respondent's costs of the appeal"]