FORBES SHIRE COUNCIL v JONES [1999] NSWCA 419

FORBES SHIRE COUNCIL v JONES [1999] NSWCA 419

The Council and contractor were liable for the plaintiff's injuries due to their respective misfeasance and negligence in failing to identify and rectify a hazard created during works. However, the damages award was excessive given the video and medical evidence undermining the extent of disability; thus, a new trial is required on damages, and apportionment should be equal. The contractor was not entitled to indemnity from the Council under the contract clause as no customer specification in the relevant sense existed. Requests for a general new trial due to procedural matters were rejected except as to damages.

Parties
Appellant: Forbes Shire Council; First Respondent: John William Jones; Second Respondent: Emoleum (Australia) Limited
Jurisdiction
Australia
Judgment Date
17 November 1999
Procedural Posture
Civil Appeal / Judgment on Appeal From District Court; Orders Made Including for New Trial Limited to Damages
Outcome
Appeal by Forbes Shire Council allowed; cross-appeal by Emoleum (Australia) Limited dismissed.
Legal Topics
Negligence, Misfeasance, Personal Injury, Damages, Liability of Council and Contractor, Apportionment of Responsibility, Indemnity Clause in Contract, Trial Fairness, Cross Examination Rights
Tort Law Contract Law Civil Procedure Negligence Misfeasance Personal Injury Damages Liability of Council and Contractor +4 more

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Parties

Forbes Shire Council

Appellant

John William Jones

First Respondent

Emoleum (Australia) Limited

Second Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal From District Court; Orders Made Including for New Trial Limited to Damages

Legal Issues

  1. 1 Whether the Council and contractor were liable for personal injury from tripping over a broken pipe in a footpath.
  2. 2 Whether the damages awarded were excessive in light of video and medical evidence.
  3. 3 Whether apportionment between defendants was reasonable.

Ratio Decidendi

The Council and contractor were liable for the plaintiff's injuries due to their respective misfeasance and negligence in failing to identify and rectify a hazard created during works. However, the damages award was excessive given the video and medical evidence undermining the extent of disability; thus, a new trial is required on damages, and apportionment should be equal. The contractor was not entitled to indemnity from the Council under the contract clause as no customer specification in the relevant sense existed. Requests for a general new trial due to procedural matters were rejected except as to damages.

Court Disposition

Appeal by Forbes Shire Council allowed; cross-appeal by Emoleum (Australia) Limited dismissed.

Orders

  • Set aside the judgment and orders of the District Court except as to the liability of the defendants to the plaintiff.
  • Order a new trial limited to the issue of damages.