New South Wales
Court of Appeal
CITATION: Brambles Australia Ltd (trading as Brambles Industrial Services) v Sandy & Anor [2006] NSWCA 357
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 29 November 2006
JUDGMENT DATE:
14 December 2006JUDGMENT OF: Handley JA at 1; Giles JA at 2; McColl JA at 68 DECISION: Appeal dismissed. Brambles ordered to pay the costs of Mr Sandy and SGIO. CATCHWORDS: Negligence - truck driver injured when truck overbalanced when tipping load - said he moved from being out-of-level to apparently level ground - whether trial judge in error in accepting this evidence - submission that if was level ground truck could not have overbalanced - other evidence that apparently level ground had irregularities - on facts, could have overbalanced and acceptance of driver's evidence not in error - whether negligence in not providing better tipping area - fact no accidents for a prior period not determinative - risk foreseeable and potentially serious consequences - not reasonable to ignore risk - whether driver's injury an "injury" within definition in Motor Accidents Compensation Act 1999 - no fault in his driving - fault of his employer as owner of truck was not in use or operation of truck but in the system of work for its employee - injury not within definition. LEGISLATION CITED: Motor Accidents Compensation Act 1999
Workers Compensation Act 1987CASES CITED: Cruise Group Pty Ltd v Fullard [2005] NSWCA 161;
CSR Ltd v Della Maddalena (2006) 224 ALR 1;
Fairfield City Council v Petro [2003] NSWCA 150;
Fox v Percy (2003) 214 CLR 118;
Francis v Lewis [2003] NSWCA 152;
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187;
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11;
University of Wollongong v Mitchell [2003] NSWCA 94;
Wyong Shire Council v Shirt (1980) 146 CLR 40.PARTIES: Brambles Australia Ltd (trading as Brambles Industrial Services) - Appellant
James Sandy - First Respondent
SGIO Insurance Ltd - Second RespondentFILE NUMBER(S): CA 40893/05 COUNSEL: K Rewell SC & P Frame - Appellant
D Kennedy SC & P Kirby - First Respondent
L King SC - Second RespondentSOLICITORS: Moray & Agnew - Appellant
Bale Boshev Lawyers - First Respondent
Sparke Helmore - Second RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 859/01; DC 344/03 LOWER COURT JUDICIAL OFFICER: Sidis DCJ LOWER COURT DATE OF DECISION: 28 October 2005
CA 40893/05
DC 859/01 (Newcastle)
DC 344/03 (Newcastle)Thursday 14 December 2006HANDLEY JA
GILES JA
McCOLL JA
BRAMBLES AUSTRALIA LTD v SANDY & ANOR
Judgment
1 HANDLEY JA: I agree with Giles JA.
2 GILES JA: Mr James Sandy was employed by Brambles Australia Ltd (“Brambles”) as a truck driver. On 18 February 2000 he was driving a prime mover with a tri-axle tipping trailer, carrying a coal by-product known as ban press filter (“BPF”) from a…
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Details
- Case
- [2006] NSWCA 357
- Decision Date
CaseChat Overview and Summary
Brambles Australia Ltd (trading as Brambles Industrial Services) appealed a decision of the trial judge concerning injuries sustained by its employee, Mr Sandy, a truck driver. Mr Sandy was injured when his truck overbalanced while tipping a load. The central dispute revolved around whether the trial judge erred in accepting Mr Sandy's evidence that he had moved the truck from an out-of-level position to apparently level ground before tipping, and whether the employer had been negligent in failing to provide a safer tipping area.
The Court of Appeal was required to determine two primary legal issues. Firstly, whether the trial judge was correct in accepting Mr Sandy's evidence regarding the ground conditions at the time of the incident, despite submissions that if the ground had been level, the truck could not have overbalanced. Secondly, the court had to consider whether Brambles was negligent in not providing a better tipping area, and if the absence of prior accidents was a determinative factor. Finally, the court was asked to consider whether Mr Sandy's injury constituted an "injury" within the meaning of the *Motor Accidents Compensation Act 1999* (NSW), given that the fault lay with his employer's system of work rather than his own driving.
The Court of Appeal found that the trial judge was not in error in accepting Mr Sandy's evidence. The court noted that other evidence indicated that the apparently level ground contained irregularities, which could have caused the truck to overbalance. Regarding negligence, the court held that the fact no accidents had occurred for a prior period was not determinative. The risk of the truck overbalancing was foreseeable and the potential consequences were serious, making it unreasonable for Brambles to ignore this risk. The court also determined that Mr Sandy's injury did not fall within the definition of "injury" under the *Motor Accidents Compensation Act 1999* because the fault was attributed to the employer's system of work, not the use or operation of the truck by the driver.
The appeal was dismissed, and Brambles Australia Ltd was ordered to pay the costs of Mr Sandy and SGIO.
The Court of Appeal was required to determine two primary legal issues. Firstly, whether the trial judge was correct in accepting Mr Sandy's evidence regarding the ground conditions at the time of the incident, despite submissions that if the ground had been level, the truck could not have overbalanced. Secondly, the court had to consider whether Brambles was negligent in not providing a better tipping area, and if the absence of prior accidents was a determinative factor. Finally, the court was asked to consider whether Mr Sandy's injury constituted an "injury" within the meaning of the *Motor Accidents Compensation Act 1999* (NSW), given that the fault lay with his employer's system of work rather than his own driving.
The Court of Appeal found that the trial judge was not in error in accepting Mr Sandy's evidence. The court noted that other evidence indicated that the apparently level ground contained irregularities, which could have caused the truck to overbalance. Regarding negligence, the court held that the fact no accidents had occurred for a prior period was not determinative. The risk of the truck overbalancing was foreseeable and the potential consequences were serious, making it unreasonable for Brambles to ignore this risk. The court also determined that Mr Sandy's injury did not fall within the definition of "injury" under the *Motor Accidents Compensation Act 1999* because the fault was attributed to the employer's system of work, not the use or operation of the truck by the driver.
The appeal was dismissed, and Brambles Australia Ltd was ordered to pay the costs of Mr Sandy and SGIO.
Orders
Orders of the court
Appeal dismissed. Brambles ordered to pay the costs of Mr Sandy and SGIO.
Background
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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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