Why Westfield escaped liability and obtained an indemnity costs order from its independent contractor

Judgment date: 25 November 2011

Elphick v Westfield Shopping Centre Management Company Pty Limited [2011] NSWCA 356

New South Wales Court of Appeal¹

In Brief

• Careful consideration of the scope and content of the duty of care owed by an occupier to employees of an independent contractor is required when determining whether there has been a breach of duty.
• The terms of contractual relationships between parties are significant in determining the responsibilities and obligations of the respective parties.
• The general rule is that an insured and an insurer cannot have separate representation even if there are "insured" and "uninsured" elements to the claim unless the Court grants leave for each person/entity to have separate representation.