CITATION: BORAL TRANSPORT LTD v WHITEHEAD & ORS [2001] NSWCA 395 FILE NUMBER(S): CA 41060/00 HEARING DATE(S): 22 October 2001 JUDGMENT DATE:
13 November 2001PARTIES :
Boral Transport Limited - Appellant
Terry John Whitehead - First Respondent
Muswellbrook Coal Co Limited - Second Respondent
AMP General Insurance Limited - Third RespondentJUDGMENT OF: Sheller JA at 1; Stein JA at 69; Heydon JA at 70
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :791/98 LOWER COURT
JUDICIAL OFFICER :Sidis DCJ
COUNSEL: J E Maconachie QC/H J Halligan - Appellant
J E Sexton SC/R J Cheney - First Respondent
I G Harrison SC/R H Weinstein - Second Respondent
N/A - Third RespondentSOLICITORS: Abbott Tout - Appellant
Bale Boshev & Associates - First Respondent
McCabe Terrill - Second Respondent
Sparke Helmore - Third RespondentCATCHWORDS: TORT - Negligence - breach - causation - damages - truck driver injured when truck turned over while transporting coal - standard of duty owed by employer. LEGISLATION CITED: Workers Compensation Act 1987
Motor Traffic Act 1909CASES CITED: Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301
Betts v Whittingslowe (1945) 71 CLR 637
Electric Power Transmission Pty Limited v Cuiuli (1961) 104 CLR 177
Hamilton v Nu Roof (WA) Pty Ltd (1956) 96 CLR 18
Liftronic Pty Limited v Unver (2001) 75 ALJR 867
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Oxley County Council v MacDonald & Ors (unreported) [1999] NSWCA 126
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492
Smith v Austin Lifts Ltd [1959] 1 WLR 100
Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337DECISION: 1. Appellant's appeal dismissed with costs to be assessed on an indemnity basis; 2. Second respondent's cross-appeal dismissed with costs; 3. First respondent's cross-appeal allowed; 4. The verdict, judgment and orders of 14 December 2000 set aside other than the order for costs; 5. In lieu thereof ; (a) verdict and judgment for the plaintiff against the first defendant for $587,511.28; (b) verdict and judgment for the plaintiff against the second defendant for $556,264.99; (c) verdict and judgment for the first defendant on its cross-claim against the second defendant for $389,385.89; (d) verdict and judgment for the second defendant on its cross-claim against the first defendant for $198,125.79; 6. No order as to the costs of the first respondent's cross-appeal.
CA 41060/00
DC 791/98
SHELLER JA
STEIN JA
HEYDON JA
BORAL TRANSPORT LIMITED v WHITEHEAD & ORS
On 12 August 1998, the first respondent was injured when the coal truck he was driving overturned while making a sharp right hand turn. The first respondent was employed by the appellant to move coal from a mine operated by the second respondent to a rail terminal. The first respondent commenced proceedings in the District Court against both the appellant and the second respondent. He alleged that the second respondent was negligent in that it had loaded the coal into the truck…
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- AGLC
- Boral Transport Ltd v Whitehead [2001] NSWCA 395
- Case
- [2001] NSWCA 395
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether Boral Transport Ltd had breached its duty of care to Mr. Whitehead, whether any such breach caused or contributed to his injuries, and the appropriate assessment of damages. The court also had to consider the interplay between the claims of the plaintiff (Mr. Whitehead) against the defendants and the cross-claims between the defendants.
The Court of Appeal found that Boral Transport Ltd had breached its duty of care to Mr. Whitehead. The court applied established principles of negligence, focusing on the employer's obligation to provide a safe system of work. The reasoning involved a detailed examination of the circumstances surrounding the accident and the employer's knowledge of potential risks. The court ultimately allowed the first respondent's cross-appeal, setting aside the original verdict and judgment.
In lieu of the previous orders, the Court of Appeal entered verdicts and judgments for the plaintiff against both the first and second defendants. Furthermore, it made specific orders regarding the cross-claims between the first and second defendants, allocating liability and damages between them. The appeal by Boral Transport Ltd was dismissed with costs on an indemnity basis, while the second respondent's cross-appeal was also dismissed. The costs of the first respondent's cross-appeal were not ordered.
Orders
Orders of the court
1. Appellant’s appeal dismissed with costs to be assessed on an indemnity basis;
2. Second respondent’s cross-appeal dismissed with costs;
3. First respondent’s cross-appeal allowed;
4. The verdict, judgment and orders of 14 December 2000 set aside other than the order for costs.
5. In lieu thereof
(a) verdict and judgment for the plaintiff against the first defendant for $587,511.28;
(b) verdict and judgment for the plaintiff against the second defendant for $556,264.99;
(c) verdict and judgment for the first defendant on its cross-claim against the second defendant for $389,385.89;
(d) verdict and judgment for the second defendant on its cross-claim against the first defendant for $198,125.79.
6. No order as to the costs of the first respondent’s cross-appeal.
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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