Atkinson v Gameco (NSW) Pty Ltd

[2005] NSWCA 338

CITATION:	Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338
HEARING DATE(S):	30/09/05
JUDGMENT DATE:	10 October 2005
JUDGMENT OF:	Giles JA at 1; Ipp JA at 2; Hunt AJA at 36
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	NEGLIGENCE - employee - non-delegable duty of care - injury occurring on premises of third party in Thailand - casual act of negligence - training in safety and risk assessment - causation. D
CASES CITED:	Andar Transport Pty Ltd v Brambles Ltd (2004) 317 CLR 424 Bourke v Victorian Work Cover Authority [1999] 1 VR 189 English v Wilsons and Clyde Coal Co Ltd (1936) SC 883 Kondis v State Transport Authority (1984) 154 CLR 672 Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 Smith v Austin Lifts Limited [1959] 1 WLR 100 Taylor v Sims & Sims [1942] 2 All ER 375 TNT Australia Pty Limited v Christie [2003] NSWCA 47 Wilson v Tyneside Window Cleaning Company [1958] 2 QB 110
PARTIES:	Anthony Atkinson (Appellant) Gameco (NSW) Pty Limited (Respondent)
FILE NUMBER(S):	CA 40942/04
COUNSEL:	M R Aldridge SC/E E Welsh (Appellant) J McIntyre SC/A Capelin (Respondent)
SOLICITORS:	Maxwell Berghouse & Ives (Appellant) Moray & Agnew (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	4297/02
LOWER COURT JUDICIAL OFFICER:	Bishop DCJ

CA 40942/04
DC 4297/02

GILES JA
IPP JA
HUNT AJA

Monday 10 October 2005

ANTHONY ATKINSON v GAMECO (NSW) PTY LIMITED

Judgment

1 GILES JA: I agree with Ipp JA.

2 IPP JA: Mr Atkinson, the appellant, was employed as the marketing manager of Gameco (NSW) Pty Ltd, the respondent. Gameco manufactured gas burners. Mr Atkinson had considerable experience in the design, assembly and sale of gas burners.

3 In August 1997 Mr Atkinson travelled to Thailand in an attempt to interest a Thai company in purchasing Gameco’s gas burners. The Thai company was a potential customer as it manufactured bitumen tanker vehicles that utilised wood burners and Gameco hoped that it might be persuaded to install the Gameco product instead. The burners were used to heat the bitumen in the tankers and thereby to keep it in liquid form.

4 While at the premises of the Thai company, Mr Atkinson decided that he would be assisted by an inspection of the burner tubes in its tankers. The only way in which he could do this was to climb to the top of the cylindrical tank of a tanker and to open a hatch situated there. He would then be able to look down and observe the burner tubes.

5 At the time Mr Atkinson was being shown around by Mr Saunders, a senior employee (an Australian) of the Thai company. Mr Atkinson asked Mr Saunders if he could climb on to a tanker so that he could look at the burner tubes. Mr Saunders pointed to a tanker, one of several on the factory floor, and said, “You can have a look on that one”.

6 A ladder was attached to the…