Kearney v Ballyfore Engineering and Excavations Pty Limited - [2011] NSWSC 210

Supreme Court

New South Wales

Medium Neutral Citation: Kearney v Ballyfore Engineering & Excavations Pty Limited [2011] NSWSC 210
Hearing dates: 21/06/10, 22/06/10, 23/06/10, 24/06/10
Decision date: 29 March 2011
Jurisdiction: Common Law
Before: Rothman J
Decision:
1. Judgment for the plaintiff.
2. The plaintiff file minutes of orders reflecting these reasons within 21 days of the date hereof.
3. Leave reserved to each party to address on any issue affecting the calculation of damages, including any adjustments necessary to account for the time between the hearing and the date of judgment, and on costs and interest.

Catchwords: TORT - negligence - personal injury - construction site - truck driver hired out to truck owner - liability of employer and principal - alternate rights - damages
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Cases Cited: Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191
Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor; Brimac Pty Ltd v Johnston & Anor [2005] NSWCA 423
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Hoad v Peel Valley Exporters Pty Ltd [2008] NSWSC 981
Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35 at [20]; (2009) 240 CLR 1
Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Tolhurst v Cleary Bros (Bombo) Pty Ltd & Anor [2008] NSWCA 181
Category: Principal judgment
Parties: Richard Alexander Kearney (Plaintiff)
Ballyfore Engineering & Excavations Pty Limited (First Defendant)
Billbergia Group Pty Limited (Second Defendant)
Representation:
Counsel:

B Gross QC/V Jurisich (Plaintiff)
M Gracie (First Defendant)
N Polin (Second Defendant)
Solicitors:
P K Simpson & Co (Plaintiff)
Lee & Lyons Lawyers (First Defendant)
Curwoods Lawyers (Second Defendant)

File Number(s): 2007/264990

Judgment

The plaintiff, Richard Alexander Kearney, sues in negligence for personal injury allegedly suffered as a result of two incidents at work. The incidents occurred on 22 February 2004 and on or about 5 April 2004 at a building site in Meadowbank known as the Water Point Development Site. Mr Kearney was a truck driver employed by the first defendant, Ballyfore Engineering and Excavations Pty Limited ("Ballyfore"), at the time. The occupier of the site was the second defendant, Billbergia Group Pty Limited ("Billbergia"), who had engaged Ballyfore to provide Mr Kearney's services.

On 22 February 2004, Mr Kearney alleges that he suffered injury as a result of a fall from a ladder permanently attached to the side of the truck ("the truck ladder"). An 85 tonne excavator was loading Mr Kearney's truck with sandstone boulders. The plaintiff alleges that Billbergia, through its employee, instructed Mr Kearney to stand on the truck ladder to direct the excavator operator, or that both Billbergia and Ballyfore ought to have been aware that Mr Kearney would be doing so. The employee of the second defendant negligently released…

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: [2011] NSWSC 210
Decision Date: 29 March 2011

CaseChat Overview and Summary

In the case of Kearney v Ballyfore Engineering and Excavations Pty Limited, the plaintiff, Mr Kearney, sought compensation for injuries he sustained while working as a truck driver on a construction site operated by Ballyfore Engineering and Excavations Pty Limited, hereinafter referred to as Ballyfore. The injuries arose from an incident where the truck collided with a stationary vehicle. The plaintiff alleged that the collision was due to the negligence of Ballyfore, which employed him to operate the truck, and the truck owner, who hired out the vehicle to Ballyfore. The dispute involved determining the liability of both Ballyfore and the truck owner for the injuries incurred by Mr Kearney.

The court was tasked with resolving several legal issues, including whether Ballyfore was vicariously liable for the negligence of the truck driver, whether the truck owner could be held directly liable for the injuries, and whether the plaintiff could claim damages from both parties. The central issue was whether the plaintiff could exercise alternate rights against both Ballyfore and the truck owner or whether he had to choose one party as the sole defendant.

The court concluded that Ballyfore was vicariously liable for the negligence of the truck driver, as the driver was under the control and direction of Ballyfore at the time of the incident. However, the court also found that the truck owner could be held liable if it was proven that they were negligent in hiring out the vehicle. The court emphasised that the plaintiff had the right to pursue damages from both parties, and that the damages awarded should not exceed the total amount of compensation to which the plaintiff was entitled. The court ruled in favour of the plaintiff, awarding damages against Ballyfore and the truck owner, with the total amount not exceeding the compensation to which the plaintiff was entitled.

Orders