JA & BM Bowden & Sons Pty Limited v Doughty - [2009] NSWCA 82

New South Wales
Court of Appeal

CITATION:	JA & BM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	31 March 2009
JUDGMENT DATE:	20 April 2009
JUDGMENT OF:	Giles JA at 1; Handley AJA at 37; Sackville AJA at 45
DECISION:	(1) Appeal allowed; (2) Set aside the verdict and jugment for the respondent for $535,198 and in lieu thereof verdict and judgment for $278,628; (3) respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified.
CATCHWORDS:	Negligence - tractor rolled over - driver instructed to keep rollover protection device lowered - driver injured - whether "injury" within Motor Accidents Compensation Act 1999 - owner at fault in giving the instruction - whether fault in use or operation of tractor - (by majority) the use or operation was being driven - not fault in that use or operation.
CATEGORY:	Principal judgment
CASES CITED:	Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568; Brambles Australia Ltd v Sandy [2006] NSWCA 357; (2006) 47 MVR 207; Hooker v Gilling [2007] NSWCA 99; Inasmuch Community Inc v Bright [2006] NSWCA 99; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529; Portlock v Baulderstone Hornibrook Engineering Pty Ltd [2005] NSWSC 775; Walfertan Processors Pty Ltd v Dever [2006] NSWCA 289. Toll Pty Ltd v Dakic [2006] NSWCA 58;
PARTIES:	JA & BM Bowden & Sons Pty Ltd - Appellant Paul Doughty - Respondent
FILE NUMBER(S):	CA 40198/08
COUNSEL:	L King SC & P Stockley - Appellant I Roberts SC & A Black - Respondent
SOLICITORS:	TurksLegal - Appellant Walsh & Blair Lawyers, Wagga Wagga - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 10/07 (Wagga Wagga)
LOWER COURTJUDICIAL OFFICER:	Charteris DCJ
LOWER COURT MEDIUM NEUTRAL CITATION:	Paul Doughty v JM & BM Bowden & Sons Pty Ltd, Charteris DCJ, 8 April 2008, unreported.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40198/08
DC 10/07 (Wagga Wagga)

GILES JA
HANDLEY AJA
SACKVILLE AJA

Monday 20 April 2009

J A & B M BOWDEN & SONS PTY LTD v DOUGHTY

Judgment

1 GILES JA: The respondent was employed by the appellant as an orchard hand. He was injured when a tractor he was driving in the course of his employment rolled over. The issue in the appeal is whether Chapter 5 of the Motor Accidents Compensation Act 1999 (“the Act”) applied to the award of damages in respect of his injury. If it did not, his damages should have been a significantly lesser sum assessed as modified common law damages under Division 3 of the Workers Compensation Act 1987.

2 The appellant conducted orchards on two properties some five kilometres apart. The…

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 82
Decision Date: 20 April 2009

CaseChat Overview and Summary

JA & BM Bowden & Sons Pty Limited (the appellant) appealed to the New South Wales Court of Appeal against a judgment entered in favour of Mr Doughty (the respondent) following a tractor rollover incident. The respondent, an employee of the appellant, sustained injuries when the tractor he was operating rolled over. The appellant had instructed the respondent to keep the rollover protection device lowered, which the respondent complied with. The respondent's claim for damages was based on the appellant's alleged negligence in giving this instruction.

The primary legal issue before the Court of Appeal was whether the respondent's injury constituted an "injury" within the meaning of the *Motor Accidents Compensation Act 1999* (NSW). This question turned on whether the fault of the appellant, in instructing the respondent to lower the rollover protection device, constituted fault in the "use or operation" of the tractor, as required by the Act for a claim to be covered.

By majority, the Court of Appeal held that the instruction to lower the rollover protection device, while negligent, did not amount to fault in the "use or operation" of the tractor. The Court reasoned that the "use or operation" of the tractor referred to the driving or mechanical functioning of the vehicle itself, not the antecedent decision-making process regarding safety equipment. Therefore, the injury sustained by the respondent did not fall within the scope of the *Motor Accidents Compensation Act 1999*.

Consequently, the appeal was allowed. The original verdict and judgment for the respondent were set aside, and a reduced judgment of $278,628 was entered in his favour. The respondent was ordered to pay the appellant's costs of the appeal and was granted a certificate under the Suitors Fund Act, provided he otherwise qualified.

Orders

Orders of the court

(1) Appeal allowed; (2) Set aside the verdict and jugment for the respondent for $535,198 and in lieu thereof verdict and judgment for $278,628; (3) respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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