Broad v Letizia and Sheltop 29 Pty Ltd t/a Jay and Jay Industries

[1998] QCA 62

IN THE COURT OF APPEAL	[1998] QCA 062
SUPREME COURT OF QUEENSLAND

Appeal No. 7679 of 1997

Brisbane

[Broad v. Letizia & Anor.]

BETWEEN:

BRYAN WAYNE BROAD

(Plaintiff) Appellant

AND:

ROBERT LETIZIA

(First Defendant) First Respondent

AND:

SHELTOP 29 PTY. LTD. (ACN 011 019 346) trading under the firm name or style of JAY AND JAY INDUSTRIES

(Second Defendant) Second Respondent

Davies J.A. Pincus J.A. Shepherdson J.

Judgment delivered 17 April 1998

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:	NEGLIGENCE - liability of company and its director to an independent contractor for personal injury suffered in the course of loading a truck - whether director owed a duty of care to the appellant in regard to the manner of loading the truck - whether an attempt to manually re- position an object on his own was the sole cause of the appellant's injury.
Counsel:	Mr. R. C. Morton for the appellant Mr. P. R. Dutney Q.C. for the respondents
Solicitors:	Ebsworth & Ebsworth for the appellant Barry & Nilsson for the respondents
Hearing Date:	3 April 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7679 of 1997

Brisbane

Before Davies J.A. Pincus J.A. Shepherdson J.

[Broad v. Letizia & Anor.]

BETWEEN:

BRYAN WAYNE BROAD

(Plaintiff) Appellant

AND:

ROBERT LETIZIA

(First Defendant) First Respondent

AND:

SHELTOP 29 PTY. LTD. (ACN 011 019 346) trading under the firm name or style of JAY AND JAY INDUSTRIES

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17 April 1998

The appellant appeals against a judgment dismissing his action for damages for personal injuries

alleged to have been caused by the negligence of the respondents. The appellant, who was a contract

carrier, was on the morning of Saturday 20 April 1991 loading his truck with goods at the second

respondent's premises at Albion, prior to carrying them to destinations for the second respondent. He

was being assisted in that operation by the first respondent, a director of the second respondent who

was operating a forklift for that purpose. The loading of the appellant's truck, which was positioned partly on the roadway and partly on the footpath outside the second respondent's premises, had

commenced on the previous day.

By the time the appellant's injury occurred the truck was substantially loaded with bales of rags

on pallets and, immediately prior to his injury, a bale rack which was a wooden structure approximately

1.8 metres long, 1.2 metres high and 90 centimetres wide. It had three legs and, at its top, three arms

projecting at right angles from the back on which were spikes to hand bales. The arms, which were

equidistant, gave the rack the appearance of the letter E when viewed from above. This was the first

of two such racks which were required to be loaded onto and carried by the appellant's truck. The

truck had a flat wooden tray approximately 6.7 metres long and 2.1 metres wide with a raised metal

rim around its perimeter.

Work that morning had been interrupted by an altercation not involving the appellant and

unrelated to the loading operation except that, in consequence of the interruption, the operation was

being conducted more hurriedly than it otherwise might have been.

It was the intention of the appellant, who was the only witness in the case below, that the bale

racks would be loaded onto the rear of the tray, lengthwise across the width of the tray, facing one

another so that the arms "interlocked", as the appellant put it. It was only in this way, he thought, that

they would both fit in the space left on the tray after the bales had been loaded. Accordingly he

instructed the first respondent to place the first bale rack on the tray so that its arms faced the rear of

the truck.

When the first respondent returned to the truck with the first bale rack on the tines of his forklift

it must have been apparent to the appellant, who was standing beside the truck and observing his

approach, that if the respondent placed it on the rear of the tray it would be facing in the direction

opposite to that in which the appellant had directed that it should. Nevertheless the appellant said and did nothing to prevent the loading in that way and the first respondent placed it on the rear of the tray

lengthwise across it. As can be seen from the respective dimensions of the length of the rack (1.8

metres) and the width of the tray (2.1 metres) there was little margin for error and in fact it was placed

a little towards the passenger side of the truck with the end of the rack resting on the metal rim on that

side. Nevertheless its position was stable. After the loading operation was complete and presumably

whilst the first respondent was moving away the appellant called to him to stop but the first respondent

did not do so because, his Honour reasonably concluded, he did not hear the call.

The appellant did not further seek to attract the first respondent's attention but decided himself

to manually re-position the rack on the tray of the truck. He had previously been assisted by an

employee of the second respondent in manually re-positioning goods on the back of the truck and an

employee of the second respondent was, as he knew, available on this occasion to assist him in that task

had he asked for it. However he did not do so. His intention was first to "centre" the bale rack, by

which we assume he meant move it a little towards the driver's side so that it rested wholly on the

wooden tray, and then "if I could properly turn it round for him". His purpose in doing this manually on

his own rather than waiting for the return of the forklift with the second rack or calling for manual

assistance was, he said, "to save a bit of time".

The appellant climbed onto the tray of the truck and attempted to lift the rack. In order to do

so he crouched underneath the rack and, whilst facing to the rear of the truck began to apply an upward

force with his right shoulder against the middle arm of the rack. As he lifted it the bottom of it moved

outwards and the rack then commenced to slide off the tray. After attempting first to prevent or impede

that slide the appellant then jumped off the tray of the truck in order to jump clear of the tray as it slid.

In hitting the ground he fractured his right ankle. It was this injury and its consequences in respect of which he sued.

The particulars of negligence which he alleged against the respondents as causing his injury were

as follows:

against the first respondent;

(a)         failing to keep any or any proper lookout;

(b)        driving or operating a forklift so as to place the said load at an angle, when it was unsafe to do

and when a reasonably prudent forklift driver would not have done so;

(c)         driving the said forklift when he was unlicensed to drive such forklift pursuant to the Workplace

Health and Safety Regulations 1989;

(d)        failing to warn or adequately warn the appellant of the dangers of the load shifting and toppling

over when a reasonably prudent person would have done so;

(e)         placing the load on the said truck in a position which was unsafe and when a reasonably prudent

person would not have done so;

(f)          placing the load on the said truck facing in the opposite direction to the way in which the

appellant had requested that it be placed;

and against the second respondent;

(a)         causing, permitting or allowing the said forklift to be operated and/or utilised by the first

respondent when they knew or ought to have known that the first respondent did not hold a

licence pursuant to the Workplace Health and Safety Regulations 1989 to operate such forklift;

(b)        causing, permitting or allowing an inexperienced driver to operate the said forklift when it was

unsafe to do so and when a reasonably prudent person would not have done so.

Of those particulars the first is of no relevance if it is, indeed, a particular of negligence at all.
Particulars (b) and (e) against the first respondent assume that the position where the rack came to rest

on the tray of the truck after being loaded there by the forklift was unsafe. However there was nothing

in the evidence from which that could be inferred. It was, as we have said and as the learned trial Judge

found, placed in a stable position. It would not have moved had not the appellant attempted to re-

position it. It is true that it was placed in a position opposite to that in which the appellant had instructed

it to be placed, as particular (f) against the first respondent alleges, and it was also a little to one side.

But in neither of these respects was its position unsafe. Whether it was nevertheless negligent to place

it in that position is a question to which we shall return.

It is true that the first respondent was unlicensed to drive and inexperienced in driving a forklift

as alleged in particular (c) against the first respondent and particulars (a) and (b) against the second

respondent. But the only relevance of these is perhaps in explaining the failure to obey the appellant's

instruction and the failure to place it in the exact centre of the rear of the tray. The former of these is,

in any event, the subject of particular (f) against the first respondent.

The main contentions of the appellant, here and below, rely on particulars (d) and (f) against the

first respondent. In elaboration of (d) it was submitted that the first respondent, having placed the bale

rack on the tray of the truck in the position which he did, ought to have directed the appellant not to

attempt to move it manually on his own or warned him against taking that course.

A difficulty with that submission is that it equates the relationship between the appellant and the

respondents to that of employee and employer or, at least, to one in which it was the respondents who

were responsible for the system of loading the appellant's truck. However that is contrary to the

evidence. The appellant was an independent contractor and said that he was in control of the

positioning of the load on his truck.

If he was not happy with it, he said he would get the forklift driver to re-position it. It was for

him to judge, he said, whether or not to call for help in re-positioning the load and he would do so if he

needed it. But if it were practical to do so he would re-position it himself and he judged it to be

practical to do so on this occasion. Plainly, therefore, it was the appellant, not either of the respondents,

who was in charge of the manner of loading. In that operation the first respondent was subject to his

direction and the second respondent was prepared to supply manual labour as required. But the system

of work was his. Consequently the respondents owed no duty to the appellant to direct him as to how

he should perform it or to warn him against performing it in any particular way.

As to particular (f), it is true that the failure of the first respondent to comply with his instruction

was a cause of the appellant's decision to attempt to move the bale rack on his own. But the sole cause

of his injury was that decision, as the person in control of the operation of loading his truck, to attempt

to re-position the rack manually on his own rather than to await the return of the forklift for that purpose

or to seek manual assistance from employees of the second respondent.

We would dismiss the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7679 of 1997

Brisbane

[Broad v. Letizia & Anor.]

BETWEEN:

BRYAN WAYNE BROAD

(Plaintiff) Appellant

AND:

ROBERT LETIZIA

(First Defendant) First Respondent

AND:

SHELTOP 29 PTY. LTD. (ACN 011 019 346) trading under the firm name or style of JAY AND JAY INDUSTRIES

(Second Defendant) Second Respondent

Davies J.A. Pincus J.A. Shepherdson J.

Judgment delivered 17 April 1998

Further Order delivered 28 April 1998

Further Order of the Court

APPELLANT TO PAY RESPONDENTS' COSTS OF AND INCIDENTAL TO THE

APPEAL TO BE TAXED.

Counsel:	Mr. R. C. Morton for the appellant Mr. P. R. Dutney Q.C. for the respondents
Solicitors:	Ebsworth & Ebsworth for the appellant Barry & Nilsson for the respondents
Hearing Date:	3 April 1998