Andrews v Andrews and Bresabyss Pty Ltd t/as BP Five Dock

[2001] NSWCA 62

Reported Decision: (2001) 33 MVR 109

New South Wales

Court of Appeal

CITATION:	Andrews v Andrews & Bresabyss Pty Ltd t/as BP Five Dock [2001] NSWCA 62 revised - 03/05/2007
FILE NUMBER(S):	CA 40867/99
HEARING DATE(S):	14/03/01
JUDGMENT DATE:	26 March 2001
PARTIES :	Anthony Andrews (Appellant) Andrew Andrews (First Respondent) Bresabyss Pty Ltd t/as BP Five Dock (Second Respondent)
JUDGMENT OF:	Priestley JA at 1; Sheller JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	5978/98
LOWER COURT JUDICIAL OFFICER :	Graham DCJ

COUNSEL:	M.J. Neil QC / K. Pierce (Appellant) G.M. Watson (First Respondent) J.D. Hislop QC / C.E. Adamson (Second Respondent)
SOLICITORS:	Bruce & Stewart Insurance Lawyers (Appellant) Constantine G Pavlis & Co (Respondent)
CATCHWORDS:	Negligence - motor vehicle incorrectly parked at place of employment - safe system of work - employee injured responsible for system of work - contributory negligence - contribution between employer and fellow employee who parked vehicle - ND
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 Motor Accidents Act 1988
CASES CITED:	Kulczyczki v Metalex Pty Ltd (1995) 2 VR 377
DECISION:	Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40867/99

DC 5978/98

PRIESTLEY JA

SHELLER JA

FITZGERALD JA

MONDAY 26 MARCH 2001

ANDREWS v ANDREWS & Ors

JUDGMENT

1   PRIESTLEY JA: I agree with Fitzgerald JA.

2   SHELLER JA: I agree with Fitzgerald JA.

3   FITZGERALD JA: On 19 February 1996, the first respondent (the “father”) was injured when a motor vehicle which he owned rolled down a “very slight” incline in the forecourt area of the BP Five Dock Service Station and pinned him against a stanchion. The father was the active director of the second respondent (the “company”), which owned and operated the Service Station. The motor vehicle had been parked by the appellant (the “son”). The father and the son both worked at the service station and had done so for many years, the father for almost 50 years and the son for 18 years or more.

4   The son’s practice, of which the father was aware, was to engage the parking gear but not to use the handbrake when he parked a vehicle on the forecourt. Both the father and the son considered that that course was safe. The son said that his practice was in accordance with what he had been taught when he learnt his trade. The father’s evidence was that, after the engine is turned off and the parking gear engaged, there is no risk that even an old vehicle parked on a slope will “slip out of gear” and roll down the slope when the handbrake is not used.

5   However, it was accepted that, when the handbrake is not used, a vehicle parked on a slope can roll down the slope if the if the parking gear is not engaged properly. That is what led to the father’s injury. When the son parked the vehicle, he negligently failed to engage the parking gear properly. There is nothing to suggest that that had occurred previously.

6 The father sued the son, claiming damages for negligence. The son pleaded contributory negligence against the father. The son also cross-claimed against the company on the basis that he was entitled to an indemnity or contribution under Part 3 of the Law Reform (Miscellaneous Provisions) Act 1946 (the “Contribution Act”). The cross-claim was founded solely on the proposition that the company had breached its duty to maintain a safe system of work for the benefit of its employees.

7 On 28 October 1999, judgment was given in favour of the father against the son for damages and interest totalling $198,750.50, including an award of $63,000 for non-economic loss under s79A of the Motor Accidents Act 1988 (the “MAA”). The trial judge found that the father was not contributorily negligent. The son’s cross-claim against the company was dismissed.

8   The son has appealed. The appeal raises three issues, namely:

(a) Was the father contributorily negligent?

(b) Is the son entitled to an indemnity or contribution from the company? and

(c) Should the damages awarded for non-economic loss be reduced?

9   An employer is under a duty to its employees to maintain a safe system of work, which includes a duty to take reasonable care to guard against foreseeable negligence by an employee. [1]

10   The son’s claim to indemnity or contribution from the company was based upon the premise that the risk of injury to an employee of the company from the negligent failure of that employee or another employee to engage the parking gear properly when parking a vehicle on the forecourt could and should have been avoided by the company requiring employees who parked vehicles on the forecourt to use the handbrake as well as engage the parking gear.

11   The son’s principal argument that the father was contributorily negligent started from the same premise. The son submitted that, by failing to ensure that the company required employees who parked vehicles on the forecourt to use the handbrake as well as engage the parking gear, the father failed to take reasonable care for his own safety.

12   The trial judge rejected the son’s claim for indemnity or contribution from the company. His Honour said:

“When a skilled motor mechanic such as the [son], with 18 or 19 years of experience, under the supervision of [father], and who had, on his account, parked vehicles in a similar fashion on many occasions, failed simply to engage the gear properly, it seems to me that there can be no real suggestion that there was an unsafe system of work involved.”

13   The son’s principal allegation of contributory negligence was disposed of on the basis that “.. it was not any failure of the system of work which led to [the father’s] injury. Rather, it was the failure of the [son] to comply with what was, otherwise, a relatively safe system of work, namely, leaving vehicles parked with a parking gear properly engaged. It was the casual act of negligence of the [son] in failing to ensure that he had properly engaged the gear which caused the injury to the [father]. … That is so even if the [father] was aware of his son’s practice of leaving the vehicle in gear, or without the handbrake on. …. . …. the evidence would not … disclose that [the father] was aware of any particular risk such as that which in fact came to pass, namely, where his experienced and qualified son, failed to ensure that he had placed the vehicle properly in gear before leaving it on the forecourt of the garage.”

14   In the following passage, his Honour also rejected the son’s alternative argument that the father was contributorily negligent, stating:

“A further area in which contributory negligence was pleaded, relates to the suggestion that, rather than attempting to push the vehicle away as the [father] says he did, he should have removed himself from the path of the vehicle, so as to avoid the risk of injury of this type. That particular also fails because the evidence of the [father], which I accept in this regard, is really that he had little choice but, at the last moment and as the vehicle was very close to him, simply, to put out his hand in what was perhaps a reflex action, or a futile attempt, to avoid what by then had become virtually inevitable.”

15   The son’s alternative allegation of contributory negligence was not seriously pressed in this Court and I propose to say no more of it. It was plainly open to the trial judge to reject that allegation for the reason which he gave.

16   The proposition that the risk of injury to an employee of the company from the negligent failure of that employee or another employee to engage the parking gear properly when parking a vehicle on the forecourt could have been avoided by requiring employees who parked vehicles on the forecourt to use the handbrake as well as engage the parking gear may be accepted. It does not follow that it was negligent of the company not to impose that requirement.

17   The trial judge held that it was not. His Honour was clearly influenced by the low degree of risk involved in the practice which was adopted, which he obviously considered insufficient to oblige the company to require the use of a vehicle’s handbrake when it was parked on the “very slight” incline of the forecourt. That conclusion was open to his Honour and should not be interfered with by this Court. Although his Honour did not say so, he might well have been influenced by the incongruity of the son asserting that the system adopted by the company was negligent while giving evidence that that system was in conformity with what he had been “taught as a motor mechanic” and had safely implemented for almost two decades and undoubtedly considered safe.

18   The appeal in relation to both the son’s claim for indemnity or contribution and his allegation of contributory negligence against his father must accordingly be rejected.

19   The trial judge awarded the father damages for non-economic loss on the basis that the severity of his non-economic loss was 30 per cent of a most extreme case. The son’s argument in this Court was that that assessment was “excessive and outside the range of [a] sound exercise of discretion” and that “… his Honour’s findings … do not warrant an award of damages for non-economic loss above the order of 20 to 23 per cent of a most extreme case.” The son did not elaborate upon that proposition in his written submissions or in his oral argument.

20   In the circumstances, it seems unnecessary to do more than to say that no reason has been demonstrated why this Court should conclude that the trial judge’s assessment was not one which was properly available to his Honour.

21   In summary, the appeal should be dismissed with costs.

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End Notes

1. See Kulczyczki v Metalex Pty Ltd (1995) 2 VR 377, where many of the High Court authorities are considered.