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Appellate principles concerning challenges to apportionment; Contract; Indemnity October 8, 2015

Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298

Held dismissing the appeal, dismissing the second respondent’s cross-appeal and allowing the first respondent’s cross-appeal:

  1. The primary judge did not err in finding that the risk of harm was one of which both Boral and the Council knew or ought to have known (Ward JA at [185]) and was not insignificant (Ward JA at [197]); and that there were reasonable precautions that could have been taken to avoid the risk of harm (Ward JA at [206], [207]) (Emmett JA and Gleeson JA agreeing at [361] and [384] respectively).
  2. The primary judge did not err in finding that what was in the swathe came from the feathered out windrow of roadbase and aggregate on the east of the road (Ward JA at [224]; Emmett JA and Gleeson JA agreeing at [361] and [384] respectively).
  3. The primary judge did not err in concluding that the presence of a combination of roadbase and aggregate in the swathe was a necessary condition of the harm occurring. It was not necessary for the primary judge to seek to determine the amount of each of those components in the swathe. Each of Boral and the Council had an opportunity to remove the windrow that had been created by a combination of their actions and each failed to do so. But for Boral’s failure to remove the windrow, to which it had added aggregate, the accident would not have occurred. But for the Council’s failure, when it completed the roadworks, to remove the windrow other than by feathering it out as it did, the accident would not have occurred. (Ward JA at [282]; Emmett JA and Gleeson JA agreeing at [361] and [384] respectively.)
  4. In the absence of evidence as to what was visible travelling south, there was no basis for the conclusion that Mr Pillinger saw, or should, riding prudently, have seen, the swathe on his southbound trip (Ward JA at [297]). The primary judge erred in finding that there was contributory negligence on Mr Pillinger’s part (Ward JA at [298]; Emmett JA and Gleeson JA agreeing at [361] and [384] respectively).
  5. The primary judge’s apportionment of responsibility as between Boral and the Council was not demonstrated to be unreasonable or plainly unjust (Ward JA at [305]; Emmett JA and Gleeson JA agreeing at [361] and [384] respectively).
  6. The primary judge did not err in the construction of cl 10 (Ward JA at [332]; Emmett JA and Gleeson JA agreeing at [380] and [384] respectively). Clause 10 required Boral to put in place third party liability insurance for the benefit of the Council on which it could claim if a third party suffered injury as a consequence of the resealing works whether or not that was caused in part by its own negligence (Ward JA at [331]). Even if cl 10 be understood as referring to any liability arising out of or as a consequence of the performance by Boral of its obligations as contractor under the contract (that is, the same limitation as contained in cl 8), in the present case both Boral and the Council contributed to the loss suffered by Mr Pillinger. Thus, the Council’s liability does arise, at least partly, out of the performance by Boral of its obligations under the contract (Emmett JA at [380]).
  7. The primary judge did not err in concluding that the Council could not rely on any breach of cl D2.7(iii) or cl D2.7(v) (Ward JA at [347], [348]-[349]; Emmett JA and Gleeson JA agreeing at [381]-[382] and [384] respectively).

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