Construction Law Review

Construction Law Review – August

Please refer below to our Construction Law Review, selected from AR Conolly’s Daily Bulletins covering Insurance, Banking, Construction & Government.

Jurox Pty Ltd v Fullick [2016] NSWCA 180
Court of Appeal of New South Wales
Leeming & Simpson JJA; Rothman J
Negligence – respondent employed by labour hire company sued appellant for injury suffered when emptying bag of dextrose into hopper at premises occupied by appellant – primary judge found in respondent’s favour – whether unsafe system of work – instruction – ss5B, 5D & 5R Civil Liability Act 2002(NSW) – ss75A(6) & 75A(10) Supreme Court Act 1970 (NSW) – ss151H, 151ZWorkers Compensation Act 1987 (NSW) – held: Court satisfied primary judge correct in conclusion concerning inadequacy of supervision – no contributory negligence – labour hire company was not a joint tortfeasor – no error in award of damages – appeal dismissed.

Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Court of Appeal of Western Australia
Newnes & Murphy JJA
Workers compensation – appellant sought compensation from respondent for injury allegedly suffered in course of employment – arbitrator found appellant’s employment with respondent had ceased at time of alleged incident and dismissed claim – primary judge dismissed appeal – Workers’ Compensation and Injury Management Act 1981 (WA) – whether primary judge should have found erroneously accepted and admitted evidence – held: ground of appeal had no prospects of success – leave to appeal refused – appeal dismissed.

Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2016] NSWSC 912
Supreme Court of New South Wales
Bergin CJ in Eq
Insurance – pleadings – plaintiff owned warehouse damaged in storm – plaintiff claimed under Property Damage & Business Interruption Policy which defendant insurer issued – whether defendant’s letter constituted admission of liability – whether insurer precluded from defending proceedings on basis of faulty design exclusion clause because ‘it has admitted liability and should not be permitted to withdraw that admission’ – whether ‘new fact or circumstance’ warranting withdrawal of admission -.held: Court satisfied there was seriously arguable case that receipt of expert opinions which differed from opinion in preliminary report was a change in circumstances existent when insurer admitted liability – insurer should not be shut out from litigation of matter subject to plaintiff’s entitlement to claim defendant estopped from relying on defence – insurer granted leave to amend commercial list response.

Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902
Supreme Court of New South Wales
Davies J
Insurance – plaintiff made claim on defendant insurer concerning Rolex watch which went missing when plaintiff in Rio de Janeiro – insurer rejected claim on basis plaintiff had not proved his loss – Local Court judge found in insurer’s favour – plaintiff contended there was error of law by failure to adequate reasons – Insurance Contracts Act 1984 (Cth) – held: Magistrate’s judgment did not provide sufficient reasons to enable Court to properly understand basis of verdict – Magistrate had not seemed to ask correct question whether plaintiff was within relevant insuring clause – Magistrate’s reasons inadequate – matter remitted – appeal allowed.