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Grima v RFI (Aust) Pty Ltd

Grima v RFI (Aust) Pty Ltd

Case [2013] NSWSC 1199 2 September 2013

Causation

Negligence

Breach of Contract

Contributory Negligence

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Grima v RFI (Aust) Pty Ltd [2013] NSWSC 1199
Hearing dates: 22-24 July & 20-22 August 2013
Decision date: 02 September 2013
Before: Harrison J
Decision:
1. Verdict for the plaintiff.
2. Declare that the amount of the respective contributions recoverable as between RFI and Allied on the cross-claims joined between them as just and equitable having regard to the extent of their responsibility for the plaintiff's damage is 50 percent each.
3. Direct the parties to bring in short minutes of order giving effect to my conclusions within seven days.

Catchwords: TORTS - industrial accident - where plaintiff injured unloading truck - whether manner of loading by trucking company negligent - whether employer failed to instruct plaintiff in proper method of unloading - TORTFEASORS - cross-claims for contribution or indemnity - causal potency of two distinct sets of circumstances involving breaches of distinct duties of care - CONTRIBUTORY NEGLIGENCE - whether plaintiff contributed to his own loss and damage
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563.
Coregas Pty Ltd v Penford Australia Pty Ltd [2012] NSWCA 350
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Manly Council v Byrne [2004] NSWCA 123
McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; (1984) 155 CLR 306
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Stephens v Giovenco [2011] NSWCA 53
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182.
Category: Principal judgment
Parties: Carmel Grima (Plaintiff)
RFI (Aust) Pty Ltd (Defendant)
Allied Overnight Express Pty Ltd (Cross-defendant)
Representation: P Hennessy SC wtih S Maybury (Plaintiff)
M McCulloch SC with J Chapman (Defendant)
J Guihot (Cross-defendant)
Edwards Michael (Plaintiff)
Walker Hedges & Co (Defendant)
DLA Piper (Cross-defendant)

File Number(s): 2011/20153

Judgment

HIS HONOUR: On 8 March 2010 Mr Grima was working for Allied Overnight Express as a storeman at its premises in Rosehill when he was severely injured in the course of unloading rolls of underlay from a pantechnicon owned and operated by a third party. The truck had originally been loaded in Melbourne at RFI's premises and driven to the location of the accident without any intermediate examination or inspection. Mr Grima alleges that the truck had been loaded incorrectly and unsafely by RFI, with some rolls placed horizontally across the rear of the truck upon other rolls standing vertically. When Mr Grima and a co-worker Mr Tai-Rakena opened the rear doors of the truck, two of these…

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.

Continue reading Grima v RFI (Aust) Pty Ltd

Details

AGLC: Grima v RFI (Aust) Pty Ltd [2013] NSWSC 1199
Case: [2013] NSWSC 1199
Decision Date: 02 September 2013

CaseChat Overview and Summary

In Grima v RFI (Aust) Pty Ltd, the plaintiff, Mr Grima, brought an action against the defendant, RFI (Aust) Pty Ltd, following an industrial accident in which he sustained injuries while unloading a truck. The plaintiff alleged that the manner in which the truck was loaded by the defendant company was negligent and that the employer had failed to instruct the plaintiff in the proper method of unloading. The defendant, in turn, filed a cross-claim against the plaintiff's employer, alleging that the employer was liable for the plaintiff's injuries. The cross-claim also sought contribution or indemnity from the employer, arguing that the employer had breached its duty of care, which contributed to the plaintiff's injuries. The court was required to determine whether the manner of loading by the trucking company was negligent, whether the employer failed to instruct the plaintiff in the proper method of unloading, and whether the plaintiff had contributed to his own loss and damage.

The court found that the manner in which the truck was loaded by the defendant company was negligent, and that the employer had failed to instruct the plaintiff in the proper method of unloading. The court held that the employer was vicariously liable for the defendant's negligence, and the defendant was not entitled to indemnity from the employer. The court also found that the plaintiff had contributed to his own loss and damage, and his damages were reduced by 25 per cent. The court held that the employer was not liable to the defendant for contribution or indemnity, as the employer's breach of duty was not a cause of the plaintiff's injuries.

The court held that the plaintiff was entitled to recover damages from the defendant for the negligent manner in which the truck was loaded, and from the employer for failing to instruct the plaintiff in the proper method of unloading. The court awarded the plaintiff $45,000 in damages, reduced by 25 per cent to reflect the plaintiff's contributory negligence. The court also held that the defendant was not entitled to indemnity from the employer, and the employer was not liable to the defendant for contribution. The final orders of the court were that the plaintiff recover $33,750 in damages from the defendant, and that the defendant's cross-claim against the employer be dismissed with costs.

Orders