Construction Law Review

Construction Law Review – June

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

Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135
Court of Appeal of New South Wales
Beazley P; Meagher & Leeming JJA
Negligence – limitations – first respondent injured in fall while delivering building materials to worksite – first respondent sued head contractor at site (Kane), appellant subcontractor, contracted by Kane (Hutchison) and employer with whom Hutchison contracted, for damages in negligence – primary judge found Hutchison breached duty of care to take reasonable care to ensure deliveries made at location and in manner that did not carry unreasonable risk of injury – primary judge found breach caused first respondent’s injuries – primary judge concluded appellant liable and that liability not established against Kane or employer – primary judge assessed contributory negligence assessed at 15% due to first respondent’s failure to take reasonable care for own safety – ss5B, 5E & 5R Civil Liability Act 2002 (NSW) – s151Z Workers Compensation Act 1987 (NSW) – held: challenge to factual findings failed – no error in formulation of duty or findings of breach and causation – no error in finding on contributory negligence – primary judge erred in relation to calculation of future economic loss – appeal dismissed – cross-appeal allowed in part.

SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2016] VSCA 119
Court of Appeal of Victoria
Santamaria, Beach & McLeish JJA
Building and construction – security of payments – appellant sought judicial review of adjudication determination under Building and Construction Industry Security of Payment Act 2002 (Vic) arising from construction contract – whether adjudicator erred in concluding contract did not provide ‘a method of resolving disputes under the contract’ under s10A – whether adjudicator erred by not valuing relevant work under ss10 & 11 – appellant contended adjudicator bound to adopt values for work fixed under contract by superintendent – held: grounds of appeal rejected – leave to appeal granted – appeal dismissed.
SCC Plenty Road

Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78
Full Court of the Federal Court of Australia
Davies, Gleeson & Edelman JJ
Contract – vicarious liability – fraud – trade practices – two appeals with identical grounds of appeal – primary judge found appellant in each appeal (Pioneer) liable to respondent for fraudulent acts by Pioneer’s employee – common ground Pioneer’s employee used position and authority to redraw funds from customer accounts without customers’ consent – employee then transferred funds to husband’s account – primary judge found Pioneer liable based on contract with respondent, vicarious liability for employee’s acts and under s84(2) Trade Practices Act 1974 (Cth) and Competition and Consumer Act 2010 (Cth) for employee’s misleading or deceptive representations – Pioneer brought one appeal – Pioneer and director of Pioneer, who was found liable as guarantor or Pioneer’s obligations, brought other appeal – success of director’s appeal dependent on success of Pioneer’s appeal – held: grounds of appeal failed – Pioneer was liable in contract, vicariously liable, and liable under s84(2) Trade Practices Act 1974 (Cth) and Competition and Consumer Act 2010 (Cth) – appeal dismissed.
Pioneer Mortgage Services

Kennedy v Queensland Alumina Ltd [2016] QCA 159
Court of Appeal of Queensland
Gotterson JA; Atkinson & Dalton JJ
Negligence – Work injury damages -contributory negligence – damages – appellant sued respondent employer for workplace injury which occurred when caustic solution came into contact with his left heel and ankle – respondent admitted liability but contended appellant was contributorily negligent – primary judge found employer discharged onus to show contributory negligence and that appropriate apportionment was 50/50 – appellant challenged finding of contributory negligence and contended quantum of judgment was too low – s10(1)(b) Law Reform Act 1995 (Qld) – s306J(3) Workers’ Compensation and Rehabilitation Act 2003 (Qld) – proof of isolation – ‘training and experience’ – ‘inadvertance’ – adequacy of reasons for finding of contributory negligence – held: grounds of appeal failed – appeal dismissed.