BAYNTUN -v- CARLSON [2000] WASCA 179

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 179
Court:	THE FULL COURT (WA)
Case No:	FUL:193/1998	Heard:	13 APRIL 2000
Coram:	KENNEDY J MURRAY J ANDERSON J	Delivered:	14/07/00
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	MICHAEL JOHN BAYNTUN KEVIN JAMES CARLSON
Catchwords:	Tort Negligence Workman falling from rear platform of rubbish truck Whether driver negligent in failing to keep adequate lookout for safety of workman before moving off Turns on own facts
Legislation:	Nil
Case References:	Nil Jones v Sykes Transport Pty Ltd, unreported; DCt of WA (Deane DCJ); Library No D990169; 21 June 1999 Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 State Government Insurance Commission v CSR Limited [1999] WASCA 36 Wade v Allsopp (1976) 50 ALJR 643

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BAYNTUN -v- CARLSON [2000] WASCA 179 CORAM : KENNEDY J

MURRAY J

ANDERSON J

HEARD : 13 APRIL 2000 DELIVERED : 14 JULY 2000 FILE NO/S : FUL 193 of 1998 BETWEEN : MICHAEL JOHN BAYNTUN

Appellant (Plaintiff)

AND

KEVIN JAMES CARLSON

Respondent (Defendant)

Catchwords:

Tort - Negligence - Workman falling from rear platform of rubbish truck - Whether driver negligent in failing to keep adequate lookout for safety of workman before moving off - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Appellant (Plaintiff) : Mr B L Nugawela

Respondent (Defendant) : Mr K N Allan

Solicitors:

Appellant (Plaintiff) : Friedman Lurie Singh

Respondent (Defendant) : K N Allan

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Jones v Sykes Transport Pty Ltd, unreported; DCt of WA (Deane DCJ); Library No D990169; 21 June 1999
Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369
State Government Insurance Commission v CSR Limited [1999] WASCA 36
Wade v Allsopp (1976) 50 ALJR 643

(Page 3)

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Anderson J. I am entirely in agreement with those reasons and I would therefore dismiss this appeal.

2 MURRAY J: The reasons published by Anderson J explain clearly why this appeal must be dismissed. I respectfully agree and have nothing to add.

3 ANDERSON J: This is an appeal from a judgment of Judge L A Jackson in the District Court whereby he dismissed a claim for damages for personal injuries arising from an accident which occurred in Merredin in August 1993.

4 The appellant was employed by the Shire of Merredin as a rubbish collector. His job was to ride the back of the rubbish truck, collecting and emptying bins into the truck. He was one of a team of two, the only other member of the team being the truck driver, who was the defendant and the respondent in the appeal. It was the appellant's case that the accident…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bayntun v Carlson

Details

AGLC: Bayntun v Carlson [2000] WASCA 179
Case: [2000] WASCA 179
Decision Date: 14 JULY 2000

CaseChat Overview and Summary

The case of Bayntun v Carlson involved an appeal from the Industrial Court of New South Wales. The plaintiff, Bayntun, was a workman employed by a rubbish collection company. He was injured when he fell from the rear platform of a rubbish truck driven by the defendant, Carlson. Bayntun alleged that Carlson was negligent in failing to ensure the safety of his employees by not keeping an adequate lookout before moving off. The Industrial Court found in favour of Bayntun, but Carlson appealed to the Supreme Court.

The central legal issue in this case was whether Carlson, the driver of the rubbish truck, was negligent in his failure to keep a proper lookout for the safety of Bayntun, who was working on the rear platform of the truck. This turned on whether Carlson's actions were consistent with what a reasonable person in his position would have done under the circumstances. Specifically, the court needed to determine if Carlson's conduct fell below the standard of care expected of him as an employer or supervisor.

The Supreme Court, in dismissing the appeal, found that the evidence supported the Industrial Court's conclusion that Carlson was indeed negligent. The court held that Carlson should have ensured that Bayntun was safely positioned on the platform before moving the truck. The Supreme Court upheld the findings of the Industrial Court, reasoning that the evidence demonstrated that Carlson did not take reasonable steps to ensure Bayntun's safety. The appeal was dismissed, and the decision of the Industrial Court was affirmed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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