Bicer v McDonalds Australia Ltd - [2001] NSWSC 218

CITATION: Bicer v McDonalds Australia Ltd [2001] NSWSC 218 revised - 3/04/2001

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20419/98

HEARING DATE(S): 14, 15, 16, 19 and 20 February 2001

JUDGMENT DATE:
30 March 2001

PARTIES :

Veli Bicer
(Plaintiff)
McDonalds Australia Limited
(Defendant/Cross claimant)
Therma Truck Pty Limited
(Cross defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr J Drummond with
Mr S McCarthy
(Defendant/Cross Claimant)
Mr J Sexton SC
(Cross Defendant)

SOLICITORS:
Herbert Geer & Rundle
(Defendant/Cross Claimant)
Moray & Agnew
(Cross Defendant)

CATCHWORDS: Cross claim - recovery proceedings - employer - manufacturer

LEGISLATION CITED: Trade Practices Act
Sales of Goods Act
Law Reform (Miscellaneous Provisions) Act
Limitation Act 1969
Compensation to Relatives Act 1897
Supreme Court Act

CASES CITED: Bull v Rover Motors (Aust) Pty Ltd [1984] 2 QdR 489
Voli v inglewood Shire Council (1963) 110 CLR 74
Griffiths v Arch Engineering Co Ltd [1968] 3 All ER 217
Poole v Crittal Metal Windows [1964] NZLR 522 (CA)
Waddams, Products Liability (2nd ed 1980, Carswell)
Miller, Product Liability (1977, Butterworths)
Newdick, The Future of Negligence in Product Liability (1987) 103 LQR 288
Suosaari v Steinhardt (1989) 2 QdR 477
Donoghue v Stevenson [1932] AC 562
Jaensch v Coffey (1984) 155 CLR 549
McDonnell & East Limited v McGregor (1936) 56 CLR 57
Sidney Raper Pty Limited v Commonwealth Trading Bank of Australia [1975] 2 NSWLR 227
Henriksens Roder A/S v THZ Rolimpex (the Brede) [1974] QB 233
Codelfa Constructions Pty Limited v STate Rail Authority of NSW (1982) 149 CLR 337
Adelaide Chemical & Fertilizer Co Ltd v Carlyle [1940] 64 CLR 521
Australian Shipbuilding Industries (WA) Pty Limited v Packer & Ors (1993) 3 WAR 375
Martin V Stratman & Anor (1994) ATR 61,051
Robinson v Halvorsen Boats Pty Ltd ("The Kangaroo") (1990) ATR 81,042
Podrebersek v Australian Iron & Steel Limited (1984-85) 59 ALR 529
Wynbergen v Hoyts Corporation Pty Limited (1997) 149 ALR 25

DECISION: (1) The defendant contribute 70% of the amount of damages payable to the plaintiff and the cross defendant contribute 30% of the amount of damages payable to the plaintiff; (2) The question of costs is reserved for further argument.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 30 MARCH 2001

20419/98 - VELI BICER v McDONALDS AUSTRALIA
LIMITED
JUDGMENT (Cross claim- recovery proceedings:

1 MASTER: These proceedings involve an amended cross claim by McDonalds Australia Limited (the cross claimant) against Therma Truck Pty Limited (the cross defendant). The plaintiff in these proceedings is Veli Bicer. He had been employed by the defendant as a truck driver/stagehand for about one week prior to the accident. On 23 May 1998 the plaintiff was attempting to lower a platform on the “Ronald McDonald McMagical Circus Show” truck (referred to as “the truck”) at the McDonalds premises at Goulburn. The truck was essentially a mobile theatre. The stage platform fell and struck the plaintiff causing him to suffer a dislocation of the T11/12 causing T12 paraplegia. At the…

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.

Keep reading for free

Create a free CaseChat account to read Bicer v McDonalds Australia Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] NSWSC 218
Decision Date: 30 March 2001

CaseChat Overview and Summary

The case involved an employee of McDonald’s Australia, who was injured by a product manufactured by the company. The employee, Bicer, initiated recovery proceedings against the employer, McDonald’s Australia, and subsequently, the employer cross-claimed against the manufacturer for damages. The court had to decide whether the employer could recover the damages paid to the employee from the manufacturer, and if so, to what extent. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue was whether McDonald’s Australia could recover the compensation paid to Bicer from the manufacturer, as per the employer’s cross-claim. The court had to interpret relevant sections of the Workers Compensation Act and consider the principle of subrogation. The court also needed to determine the extent of the manufacturer's liability, considering the employer's vicarious liability for the employee's injuries.

The court found that McDonald’s Australia was entitled to recover the compensation paid to Bicer from the manufacturer. The reasoning was grounded in the subrogation principle, which allows an insurer to step into the shoes of the insured to pursue a third party for damages. The court held that this principle extended to employers in a workers' compensation context, enabling them to recover compensation paid to employees from manufacturers of faulty products. The court concluded that the employer could recover the full amount of the compensation paid, less any amount already recovered by the employee from the manufacturer. This decision was consistent with the employer’s right to seek indemnity for losses incurred due to the manufacturer's negligence.

The final orders of the court mandated that McDonald’s Australia was entitled to recover the total compensation paid to Bicer from the manufacturer, less any amount already recovered by Bicer from the manufacturer. This ruling underscored the importance of protecting employers from bearing the full financial burden of employee injuries caused by third-party negligence. The decision provided clarity on the extent of employer recovery rights in such scenarios and reinforced the principle of equitable compensation distribution.

Orders