ZAUNER CONSTRUCTIONS PTY LTD v HARVEY & ANOR [2004] NSWCA 8

ZAUNER CONSTRUCTIONS PTY LTD v HARVEY & ANOR [2004] NSWCA 8

Clause P8.8 of the Lump Sum Contract did not transfer sole risk for the injury to Commercial, as it only operates where the proprietor occupies or uses a portion of the Works to the exclusion of the builder, which was not the case here. The apportionment of liability (85% to Zauner, 15% to Commercial) was justified due to Zauner’s greater departure from the standard of care and more significant causative acts. The quantum of damages for future economic loss was reasonable given the permanent disability and loss of earning potential of Mr Harvey.

Parties
Appellant: Zauner Constructions Pty Ltd; First Respondent: James Robert Harvey; Second Respondent: Commercial Club (Albury) Limited
Jurisdiction
Australia
Judgment Date
14 May 2004
Procedural Posture
Civil Appeal / Appeal From District Court Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Negligence, Statutory Duty, Personal Injury, Employment Liability, Building Contracts, Damages, Apportionment
Tort Law Contract Law Employment Law Negligence Statutory Duty Personal Injury Employment Liability Building Contracts +2 more

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Parties

Zauner Constructions Pty Ltd

Appellant

James Robert Harvey

First Respondent

Commercial Club (Albury) Limited

Second Respondent

Procedural Posture

Civil Appeal / Appeal From District Court Judgment

Legal Issues

  1. 1 Whether clause P8.8 of the Lump Sum Contract imposed sole liability on the proprietor for injury occurring during occupation or use of the Works before practical completion.
  2. 2 Proper apportionment of liability for personal injury between a construction company and the employer.
  3. 3 Assessment of damages for future economic loss due to injury.

Ratio Decidendi

Clause P8.8 of the Lump Sum Contract did not transfer sole risk for the injury to Commercial, as it only operates where the proprietor occupies or uses a portion of the Works to the exclusion of the builder, which was not the case here. The apportionment of liability (85% to Zauner, 15% to Commercial) was justified due to Zauner’s greater departure from the standard of care and more significant causative acts. The quantum of damages for future economic loss was reasonable given the permanent disability and loss of earning potential of Mr Harvey.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.