Herbert v Clarendon Homes (NSW) Pty Ltd [2013] NSWSC 1158

Herbert v Clarendon Homes (NSW) Pty Ltd [2013] NSWSC 1158

Clarendon owed and breached a duty of care to Mr Herbert in failing to coordinate and communicate the presence of Mr Herbert working behind the garage door to its relevant staff, a precaution that was reasonable and not burdensome. Mr Dowling breached his personal duty of care by carelessly opening the garage door without checking for persons behind it. Both breaches caused Mr Herbert's injuries. Mr Herbert took adequate precautions for his own safety; contributory negligence was not established.

Parties
Plaintiff: Ray Herbert; Defendant: Clarendon Homes (NSW) Pty Ltd
Jurisdiction
Australia
Judgment Date
23 August 2013
Procedural Posture
Negligence Claim / Principal Judgment, Verdict for Plaintiff
Outcome
Verdict for plaintiff.
Legal Topics
Negligence, Duty of Care, Vicarious Liability, Contributory Negligence, Damages, Independent Contractors, Building Site Accident
Tort Law Personal Injury Law Negligence Duty of Care Vicarious Liability Contributory Negligence Damages Independent Contractors +1 more

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Parties

Ray Herbert

Plaintiff

Clarendon Homes (NSW) Pty Ltd

Defendant

Procedural Posture

Negligence Claim / Principal Judgment, Verdict for Plaintiff

Legal Issues

  1. 1 Whether principal contractor owed a duty of care to an independent contractor engaged by subcontractor
  2. 2 Scope and breach of duty
  3. 3 Whether a warning sign or bolt should have been affixed to garage door

Ratio Decidendi

Clarendon owed and breached a duty of care to Mr Herbert in failing to coordinate and communicate the presence of Mr Herbert working behind the garage door to its relevant staff, a precaution that was reasonable and not burdensome. Mr Dowling breached his personal duty of care by carelessly opening the garage door without checking for persons behind it. Both breaches caused Mr Herbert's injuries. Mr Herbert took adequate precautions for his own safety; contributory negligence was not established.

Court Disposition

Verdict for plaintiff.

Orders

  • Proceedings stand over to 5 September 2013 at 9.30am.
  • Parties to file and serve draft forms of orders, calculations of damages, and submissions on costs by 30 August 2013.