Shaw v Niru Construction Pty Ltd & Anor (No.2) [2021] NSWDC 600

Shaw v Niru Construction Pty Ltd & Anor (No.2) [2021] NSWDC 600

The first defendant owed a duty of care to entrants such as the plaintiff because it was in practical occupation and control of the part of the Moree Avenue property affected by drainage works and it was foreseeable that entrants could suffer injury from unsafe conditions created by those works. The unpleaded independent contractor point could not be maintained for procedural fairness reasons and would have failed because the first defendant did not prove arrangements showing discharge of its duty. The unmarked metal post created a foreseeable and not insignificant risk of an entrant tripping or stumbling, and the reasonable precaution was to remove it; failure to do so breached the duty...

Jurisdiction
Australia
Judgment Date
05 November 2021
Procedural Posture
Civil Personal Injury Negligence Claim / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against the first defendant in the sum of $54,540.32; judgment for the second defendant against the plaintiff; costs reserved.
Legal Topics
["occupiers' Liability" 'independent Contractors and Vicarious Liability' 'obvious Risk' 'inherent Risk' 'breach of Duty' 'causation' 'contributory Negligence' 'assessment of Damages' 'procedural Fairness and Pleadings' 'costs Reserved']
['torts' 'negligence' 'personal Injury' 'civil Procedure' 'damages'] ["occupiers' Liability" 'independent Contractors and Vicarious Liability' 'obvious Risk' 'inherent Risk' 'breach of Duty' 'causation' 'contributory Negligence' 'assessment of Damages' 'procedural Fairness and Pleadings' 'costs Reserved']

Case Brief

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Procedural Posture

Civil Personal Injury Negligence Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiff fell and injured his left knee after stumbling over a metal post on the Moree Avenue property.' 'Whether the first defendant owed and breached a duty of care to entrants on the Moree Avenue property affected by drainage easement works.' 'Whether the first defendant could rely on an unpleaded independent contractor point to deny responsibility for negligence of a subcontractor.' 'Whether the second defendant owed a personal duty of care as a registered transferee of the drainage easement and director of the first defendant.' 'Whether the risk of harm was an obvious risk or inherent risk under the Civil Liability Act 2002 (NSW).' 'Whether the plaintiff was contributorily negligent.' "What damages should be awarded for the plaintiff's knee injury and associated disabilities."]

Ratio Decidendi

The first defendant owed a duty of care to entrants such as the plaintiff because it was in practical occupation and control of the part of the Moree Avenue property affected by drainage works and it was foreseeable that entrants could suffer injury from unsafe conditions created by those works. The unpleaded independent contractor point could not be maintained for procedural fairness reasons and would have failed because the first defendant did not prove arrangements showing discharge of its duty. The unmarked metal post created a foreseeable and not insignificant risk of an entrant tripping or stumbling, and the reasonable precaution was to remove it; failure to do so breached the duty...

Court Disposition

Judgment for the plaintiff against the first defendant in the sum of $54,540.32; judgment for the second defendant against the plaintiff; costs reserved.

Orders

  • ['Judgment for the plaintiff against the first defendant for the sum of $54,540.32' 'Judgment for the second defendant against the plaintiff.' 'Costs are reserved.' 'The plaintiff is to file and serve an outline of submissions on costs not exceeding 3 pages (excluding material evidentiary attachments) by 10 November...