Ilo Jovanovski v Billbergia Pty Limited (ACN 110 880 914)

[2012] HCASL 18

ILO JOVANOVSKI
v
BILLBERGIA PTY LIMITED (ACN 110 880 914)
[2012] HCASL 18
S231/2011

1. The applicant seeks special leave to appeal against an order of the Court of Appeal of the Supreme Court of New South Wales (Giles, Hodgson and Macfarlan JJA) dismissing the applicant's appeal against orders of the Supreme Court of New South Wales (Davies J).  

2. The applicant was a contract truck driver who drove trucks for the respondent.  In February 2004 he was injured when he slipped from a ladder on the back of one of the respondent's trucks, which were kept on the respondent's work site overnight.  An unknown person had applied grease to the steps of the truck's tailgate ladder.  Davies J found that the "greasing" was likely to have been the responsibility of somebody employed by the respondent or for whom the respondent was responsible at the work site.  In the weeks preceding the accident, the applicant had made three complaints to the site foreman about the "greasing" of different parts of his truck (there was evidence that the applicant did not get along well with his fellow workers).  The site foreman had done nothing in response to the complaints. 

3. The applicant brought a claim in negligence against the respondent in the Supreme Court of New South Wales. Davies J found that the respondent had breached a duty of care owed to the applicant. He found that the respondent should have warned all persons on the site of the dangers of putting grease on vehicles and that any person discovered to be doing so would be dismissed. However, Davies J found that causation, which was to be determined in accordance with s 5D of the Civil Liability Act 2002 (NSW), could not be established. His Honour was not satisfied that a warning, coupled with a threat of dismissal, would more likely than not have deterred the perpetrator in the circumstances of this case.

4. On appeal, the applicant contended, among other things, that Davies J had erred in finding that causation could not be made out.  Giles JA (Hodgson and Macfarlan JJA agreeing) concluded that no error was shown in Davies J's conclusion as to causation and that he (Giles JA) would have come to the same conclusion.  

5. The applicant's proposed grounds of appeal to this Court contend that the Court of Appeal erred in not finding that causation could be made out. The proposed grounds do not give rise to a question of principle of general public importance. Rather, the applicant seeks to reagitate questions of fact determined below. The applicant has insufficient prospects of success in disturbing those concurrent findings to warrant a grant of special leave.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
9 February 2012 S.M. Crennan