Buckley v Metal Mart Pty Ltd - [2008] ACTSC 79

Buckley v Metal Mart Pty Limited
[2008] ACTSC 79 (1 September 2008)

NEGLIGENCE – personal injury – plaintiff's leg crushed when semi-trailer unloaded at first defendant's premises – unlicenced forklift operator – whether employer vicariously liable for forklift driver's negligence

NEGLIGENCE – personal injury – whether first defendant liable for failure to provide a safe system for unloading semi-trailer – whether owner of semi-trailer liable for failure to warn plaintiff of risks associated with unloading – whether owner of load being delivered in breach of duty of care to plaintiff

INSURANCE – whether insured breached special conditions of policy – whether insurer liable to indemnify insured – the obligation to comply with statutes and regulations, impliedly subject to qualification of reasonableness

Insurance Contracts Act1984 (Cth) s 54
Occupational Health and Safety Act 1989 (ACT) ss 28, 29, 95

Albion Insurance Co Ltd v Body Corporate Strata Plan No 4340 [1983] 2 VR 399
Booksan Pty Ltd v Wehbe [2006] NSWCA 3
Casino Show Committee v Norris (1984) 3 ANZ Insurance Cases 60-580
Estate of the Late M T Mutton by its Executors v Howard Haulage Pty Limited [2007] NSWCA 340
Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89
Fraser v Furman [1967] 3 All ER 57
Harrison v Lau Nay Nominees Pty Limited [2004] NSWCA 18
Kim v Cole [2002] QCA 176
Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390
TNT Australia Pty Limited v Christie [2003] NSWCA 47

No. SC 369 of 2003

Judge: Stone J
Supreme Court of the ACT

Date: 1 September 2008

IN THE SUPREME COURT OF THE       )
  )          No. SC 369 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:TREVOR BUCKLEY
Plaintiff

AND:METAL MART PTY LIMITED
First Defendant

AND:ONESTEEL TRADING PTY LIMITED
Second Defendant

ANDGARY WILLIAM HAYES
Third Defendant

ORDER

Judge:  Stone J
Date:  1 September 2008
Place:  Canberra

THE COURT DECLARES THAT:

The first defendant is liable in negligence to the plaintiff for the injury he suffered consequent upon the accident that occurred on 7 January 2003.

The first defendant is vicariously liable to the plaintiff for the negligence of its employee, Mr Stuart Wood in respect of the injury the plaintiff suffered consequent upon the accident that occurred on 7 January 2003.

The plaintiff's negligence is assessed as contributing 10 per cent to the injury he suffered consequent upon the accident that occurred on 7 January 2003.

THE COURT ORDERS THAT:

CGU Insurance Ltd, pursuant to its Business Insurance Policy No 15T9485112904 commencing September 2001, indemnify the first defendant in respect of its liability declared in (1) and (2) above.

Costs be reserved.

INTRODUCTION

On 7 January 2003, the plaintiff (Mr Buckley) was doing casual work in the transport industry when he was involved in a serious accident. While his truck was being unloaded at the premises of the second defendant, OneSteel Trading Pty Limited, some very heavy metal pipes fell on him and, among other injuries, he suffered severe crushing…

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 Buckley v Metal Mart Pty 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: [2008] ACTSC 79
Decision Date: 1 September 2008

CaseChat Overview and Summary

Buckley v Metal Mart Pty Ltd was a case before the court where the plaintiff, Buckley, alleged personal injury due to an incident where his leg was crushed during the unloading of a semi-trailer at the premises of Metal Mart Pty Ltd, the first defendant. The incident involved an unlicensed forklift operator, Stuart Wood, an employee of Metal Mart Pty Ltd, who was negligent in the operation of the forklift. Buckley sought to hold Metal Mart Pty Ltd vicariously liable for the negligence of its employee and also sought to establish liability against other parties, including the owner of the semi-trailer and the owner of the load being delivered.

The primary legal issues the court was required to decide included whether Metal Mart Pty Ltd was liable for the failure to provide a safe system for unloading the semi-trailer, and whether the owner of the semi-trailer was liable for failing to warn Buckley of the risks associated with the unloading. Additionally, the court needed to determine whether the owner of the load being delivered was in breach of their duty of care towards Buckley. Another significant issue was whether CGU Insurance Ltd, the insurer of Metal Mart Pty Ltd, was liable to indemnify the first defendant under its insurance policy, specifically in relation to compliance with statutes and regulations.

The court found that Metal Mart Pty Ltd was liable in negligence for the injury Buckley suffered, and held the company vicariously liable for the negligence of its employee, Stuart Wood. The court also determined that Buckley's negligence contributed 10 per cent to the injury he sustained. Furthermore, the court found that CGU Insurance Ltd was liable to indemnify Metal Mart Pty Ltd for the declared liabilities, as the insurer's policy conditions did not preclude such indemnification. The court ordered Metal Mart Pty Ltd to indemnify Buckley for the injury he suffered and further directed CGU Insurance Ltd to indemnify Metal Mart Pty Ltd in relation to the declared liabilities. The court reserved the issue of costs for further determination.

Orders

Orders of the court

THE COURT DECLARES THAT:

1. The first defendant is liable in negligence to the plaintiff for the injury he suffered consequent upon the accident that occurred on 7 January 2003.

2. The first defendant is vicariously liable to the plaintiff for the negligence of its employee, Mr Stuart Wood in respect of the injury the plaintiff suffered consequent upon the accident that occurred on 7 January 2003.

3. The plaintiff's negligence is assessed as contributing 10 per cent to the injury he suffered consequent upon the accident that occurred on 7 January 2003.

THE COURT ORDERS THAT:

4. CGU Insurance Ltd, pursuant to its Business Insurance Policy No 15T9485112904 commencing September 2001, indemnify the first defendant in respect of its liability declared in (1) and (2) above.

5. Costs be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.