Heaney Marketing Pty Ltd v Heaney

IN THE COURT OF APPEAL	[1997] QCA 341
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No.2206 of 1997
[Heaney Marketing P/L v. Heaney]
BETWEEN:

HEANEY MARKETING PTY LTD

ACN 010 838 089

(Defendant) Appellant

AND:

SCOTT MICHAEL JOHN HEANEY

(Plaintiff) Respondent

McPherson JA
Pincus JA

Shepherdson J

Judgment delivered 3 October 1997

Separate reasons for judgment for each member of the Court, each concurring as to orders made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS: NEGLIGENCE - apportionment of responsibility - acquiescing co-director.

Nicol v. Allyacht Spars Proprietary Limited (1987) 163 CLR 611
Bankstown Foundary Pty Ltd v. Braistina (1986) 160 CLR 301

Podrebersek v. Australian Iron & Steel Pty Ltd (1985) 59 ALJR

492

Counsel:	Mr J Griffin QC for the appellant Mr L Barnes for the respondent
Solicitors:	McInnes Wilson for the appellant Boyce Garrick Eastman for the respondent
Hearing date:	22 August 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2206 of 1997

Brisbane

Before McPherson J.A.
Pincus J.A.
Shepherdson J.

[Heaney Marketing P/L v. Heaney]

BETWEEN:

HEANEY MARKETING PTY. LTD.
(ACN 010 838 089)

(Defendant) Appellant

AND:

SCOTT MICHAEL JOHN HEANEY

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 3 October 1997

I have read and agree with the reasons of Shepherdson J. The appeal should be dismissed

with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2206 of 1997.

Brisbane

Before McPherson J.A.

Pincus J.A.

Shepherdson J.

[Heaney Marketing P/L v. Heaney]

BETWEEN:

HEANEY MARKETING PTY LTD

ACN 010 838 089

(Defendant) Appellant

AND:

SCOTT MICHAEL JOHN HEANEY

(Plaintiff) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 3 October 1997

I have read the reasons of Shepherdson J in which the circumstances of the case are explained;

I agree with his Honour that the appeal must be dismissed.

There was discussion before us as to whether the respondent plaintiff’s father simply asked the

respondent to remove the machine from the respondent’s vehicle or, in effect, gave what would have been

regarded as a direction. It appears to me that the view is open that the respondent took his father’s request

to be a direction and considered himself under a duty to carry it out, in the way his father had mentioned,

namely, by using the assistance of one Gordon McPherson. It was, as the judge has found, a breach of duty

on the part of the respondent’s father to request or direct the removal of the machine in the fashion he

mentioned; the judge also found that in complying with it, the respondent was himself guilty of negligence.

Neither of these conclusions is challenged, but it is said that the trial judge underestimated the

proportion of liability which the respondent should properly bear. The argument was that, considering the

whole of the circumstances, the primary judge’s apportionment cannot stand.

The matter is one of impression rather than calculation, but I see no reason…