Doumit v Jabbs Excavations Pty Ltd - [2009] NSWCA 360

New South Wales

Court of Appeal

CITATION: Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360

HEARING DATE(S): 28/09/09

JUDGMENT DATE:
6 November 2009

JUDGMENT OF: Ipp JA at [1]; Young JA at [17]; Handley AJA at [112]

DECISION: Appeal dismissed with costs.

CATCHWORDS: TORTS - Negligence - workplace incident- bulldozer reversed over worker- whether safe system of work- whether bulldozer driver negligent- whether contributory negligence on part of injured worker- challenge to trial judge's findings. - TORTS - Negligence- road accident- whether bulldozer is a "motor vehicle" for the purposes of the Motor Accidents Compensation Act 1999- by majority it is not- Whether bulldozer is a vehicle determines whether duty of care is of employer to employee or of driver to pedestrian- operation of motor accidents legislative scheme and worker's compensation scheme. - WORDS AND PHRASES- "motor vehicle"- "vehicle".

LEGISLATION CITED: Motor Accidents Act 1988
Motor Accidents Compensation Act 1999, s 3
Motor Car Act 1903 (3 Edw 7, c.36)
Motor Vehicles (Third Party Insurance) Act 1942, ss 5, 38A
Road Transport (General) Act 2005, s 3
Traffic Act 1909
Traffic Legislation Amendment Act 1997, Sch 4

CATEGORY: Principal judgment

CASES CITED: Bransgrove v Archer [1926] NZLR 254
Browne v Dunn (1984) 6 R 67
Clark v Fehlberg [1968] Tas SR 190 (NC) 11
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; 104 CLR 80
Grygorcewicz v Broken Hill Proprietary Co Ltd [1963] NSWR 1205
Hirst v Government Insurance Office of NSW [1963] SR (NSW) 1007
Holliday v Henry [1974] RTR 101
Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672
Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110
McLean v Tedman [1984] HCA 60; 155 CLR 306
Sugar City v Bennett and White (Calgary) Ltd [1950] 3 DLR 81
Swinton v The China Mutual Steam Navigation Co Ltd [1951] HCA 54; 83 CLR 553
Talbot-Butt v Holloway (1990) 12 MVR 70
The Commonwealth v Baume [1905] HCA 11; 2 CLR 405
The King v Berchet (1690) 1 Shower KB 106; 89 ER 480

PARTIES: Fadi Doumit (Appellant)
Jabbs Excavations Pty Ltd (Respondent)

FILE NUMBER(S): CA 40070/09

COUNSEL: Dr A S Morrison SC and A D Campbell (Appellant)
M L Williams SC and J Jobson (Respondent)

SOLICITORS: Gerard Malouf & Partners (Appellant)
McCulloch & Buggy (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3482/06

LOWER COURT JUDICIAL OFFICER: S J Gibb DCJ

LOWER COURT DATE OF DECISION: 18/12/08

CA 40070/09

IPP JA
YOUNG JA
HANDLEY AJA

Friday 6 November 2009

DOUMIT V JABBS EXCAVATIONS PTY LTD

Judgment

1 IPP JA: I have had the benefit of reading the reasons to be published by Young JA and Handley AJA.

2 I agree with Young JA that the trial judge was not in error in finding that:

(a) The respondent provided a safe system of work; and

(b) There was no act of casual negligence…

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.

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Details

Case: [2009] NSWCA 360
Decision Date: 6 November 2009

CaseChat Overview and Summary

The appeal concerned a workplace incident where the appellant, Mr. Doumit, was injured when a bulldozer reversed over him. Mr. Doumit sued the respondent, Jabbs Excavations Pty Ltd, alleging negligence in the provision of an unsafe system of work and negligence on the part of the bulldozer driver. The respondent denied liability, alleging contributory negligence on the part of Mr. Doumit. The appeal was heard by Ipp and Young JJA, and Handley AJA.

The primary legal issues before the court were whether the trial judge erred in finding that Jabbs Excavations Pty Ltd was negligent and whether Mr. Doumit was contributorily negligent. A significant question also arose as to whether the bulldozer constituted a "motor vehicle" for the purposes of the *Motor Accidents Compensation Act 1999* (NSW), which would have implications for the applicable legislative scheme and the nature of the duty of care owed.

By majority, the court held that a bulldozer is not a "motor vehicle" within the meaning of the *Motor Accidents Compensation Act 1999*. This determination meant that the worker's compensation scheme, rather than the motor accidents compensation scheme, was the relevant framework. The court found no error in the trial judge's findings regarding the negligence of the employer and the contributory negligence of the injured worker, upholding the original decision.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

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.

CITATION:	Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360
HEARING DATE(S):	28/09/09
JUDGMENT DATE:	6 November 2009
JUDGMENT OF:	Ipp JA at [1]; Young JA at [17]; Handley AJA at [112]
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	TORTS - Negligence - workplace incident- bulldozer reversed over worker- whether safe system of work- whether bulldozer driver negligent- whether contributory negligence on part of injured worker- challenge to trial judge's findings. - TORTS - Negligence- road accident- whether bulldozer is a "motor vehicle" for the purposes of the Motor Accidents Compensation Act 1999- by majority it is not- Whether bulldozer is a vehicle determines whether duty of care is of employer to employee or of driver to pedestrian- operation of motor accidents legislative scheme and worker's compensation scheme. - WORDS AND PHRASES- "motor vehicle"- "vehicle".
LEGISLATION CITED:	Motor Accidents Act 1988 Motor Accidents Compensation Act 1999, s 3 Motor Car Act 1903 (3 Edw 7, c.36) Motor Vehicles (Third Party Insurance) Act 1942, ss 5, 38A Road Transport (General) Act 2005, s 3 Traffic Act 1909 Traffic Legislation Amendment Act 1997, Sch 4
CATEGORY:	Principal judgment
CASES CITED:	Bransgrove v Archer [1926] NZLR 254 Browne v Dunn (1984) 6 R 67 Clark v Fehlberg [1968] Tas SR 190 (NC) 11 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; 104 CLR 80 Grygorcewicz v Broken Hill Proprietary Co Ltd [1963] NSWR 1205 Hirst v Government Insurance Office of NSW [1963] SR (NSW) 1007 Holliday v Henry [1974] RTR 101 Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 McLean v Tedman [1984] HCA 60; 155 CLR 306 Sugar City v Bennett and White (Calgary) Ltd [1950] 3 DLR 81 Swinton v The China Mutual Steam Navigation Co Ltd [1951] HCA 54; 83 CLR 553 Talbot-Butt v Holloway (1990) 12 MVR 70 The Commonwealth v Baume [1905] HCA 11; 2 CLR 405 The King v Berchet (1690) 1 Shower KB 106; 89 ER 480
PARTIES:	Fadi Doumit (Appellant) Jabbs Excavations Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40070/09
COUNSEL:	Dr A S Morrison SC and A D Campbell (Appellant) M L Williams SC and J Jobson (Respondent)
SOLICITORS:	Gerard Malouf & Partners (Appellant) McCulloch & Buggy (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3482/06
LOWER COURT JUDICIAL OFFICER:	S J Gibb DCJ
LOWER COURT DATE OF DECISION:	18/12/08