Abu-Ali v Rubino Holdings Pty Ltd t/as Inbloom Florist [2009] NSWDC 321

Abu-Ali v Rubino Holdings Pty Ltd t/as Inbloom Florist [2009] NSWDC 321

The second defendant was employed by the first defendant under a contract of service at the time of the incident, and at least was its agent, because the first defendant retained extensive control over the kiosk, equipment, trading name, stock, prices, hours, directions and termination. The second defendant negligently failed to keep a proper lookout while pushing the trolley and struck the plaintiff, causing a soft tissue injury to the left shoulder by exacerbation of pre-existing pathology. The first defendant was vicariously liable for that negligence. The plaintiff also failed to keep a proper lookout and was 50 per cent contributorily negligent. The second defendant was entitled to...

Jurisdiction
Australia
Judgment Date
30 November 2009
Procedural Posture
Civil Personal Injury Negligence Action With Cross Claim for Indemnity / Trial Judgment
Outcome
Verdict and judgment for the plaintiff against both defendants for $18,068.90, with costs; verdict and judgment for the second defendant/cross-claimant against the first defendant/cross-defendant on the cross-claim for indemnity, with costs.
Legal Topics
['negligence' 'personal Injury' 'vicarious Liability' 'employer Employee Relationship' 'principal Agent Relationship' 'independent Contractor' 'indemnity' 'contributory Negligence' 'quantum of Damages' 'costs']
['torts' 'employment Law' 'agency' 'civil Procedure'] ['negligence' 'personal Injury' 'vicarious Liability' 'employer Employee Relationship' 'principal Agent Relationship' 'independent Contractor' 'indemnity' 'contributory Negligence' 'quantum of Damages' 'costs']

Case Brief

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Procedural Posture

Civil Personal Injury Negligence Action With Cross Claim for Indemnity / Trial Judgment

Legal Issues

  1. 1 ['Whether the incident occurred as alleged by the plaintiff.' 'Whether the relationship between the first defendant and the second defendant was one of employment, independent contract or agency.' 'The consequences of the relationship found to exist for liability to the plaintiff.' 'The nature, extent and cause of any injuries suffered by the plaintiff.' 'The quantum of damages.' 'Whether the plaintiff was contributorily negligent.' 'Whether the second defendant was entitled to indemnity from the first defendant on the cross-claim.']

Ratio Decidendi

The second defendant was employed by the first defendant under a contract of service at the time of the incident, and at least was its agent, because the first defendant retained extensive control over the kiosk, equipment, trading name, stock, prices, hours, directions and termination. The second defendant negligently failed to keep a proper lookout while pushing the trolley and struck the plaintiff, causing a soft tissue injury to the left shoulder by exacerbation of pre-existing pathology. The first defendant was vicariously liable for that negligence. The plaintiff also failed to keep a proper lookout and was 50 per cent contributorily negligent. The second defendant was entitled to...

Court Disposition

Verdict and judgment for the plaintiff against both defendants for $18,068.90, with costs; verdict and judgment for the second defendant/cross-claimant against the first defendant/cross-defendant on the cross-claim for indemnity, with costs.

Orders

  • ['Verdict and judgment for the plaintiff against the first defendant on the action in the amount of $18,068.90.' 'Verdict and judgment for the plaintiff against the second defendant on the action in the amount of $18,068.90.' "First and second defendants to pay the plaintiff's costs of the proceedings, liability for...