Klesteel Pty Ltd v Mantzouranis - [2008] NSWSC 194

CITATION: Klesteel Pty Ltd v Mantzouranis [2008] NSWSC 194

HEARING DATE(S): 28/02/2008

JUDGMENT DATE :
7 March 2008

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: 1.The appeal is allowed. I set aside the judgment given in the Local Court on 10 July 2007 and substitute therefore judgment for the plaintiff in these proceedings.
2. I order the defendant to pay the plaintiff’s costs in this Court.

CATCHWORDS: COMMON LAW - Local Court appeal - vicarious liability of employer - authorised or independent act - power to enter verdict for successful appellant

LEGISLATION CITED: Local Courts Act 1982

CATEGORY: Principal judgment

CASES CITED: Beale v GIO of NSW (1997) 48 NSWLR 430
Deatons Pty Ltd v Flew (1949) 79 CLR 370
Gordon v Tamworth Jockey Club [2003] NSWCA 82
Hawke Australia Pty Ltd v George Ambrose Commercial Pty Ltd [2007] NSWSC 1150
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Loudoun-Shand v Jadasi Investments Pty Ltd [2007] NSWCA 316
Nationwide News Pty Ltd v Naidu [2007] NSWCA 337
NSW v Lapore (2003) 212 CLR 511
Starks v RSM Security Pty Ltd [2004] NSWCA 351

TEXTS CITED: Salmond, Law of Torts, 9th ed (1936)

PARTIES: Klesteel Pty Ltd
Anestis Mantzouranis

FILE NUMBER(S): SC 13960/07

COUNSEL: Mr M Gollan (Plaintiff)
Mr P J Gow (Defendant)

SOLICITORS: Vardanega Roberts Solicitors (Plaintiff)
Ligeti Partners Lawyers (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 2456/05

LOWER COURT JUDICIAL OFFICER : O'Shane LCM

LOWER COURT DATE OF DECISION: 10 July 2007

- 17 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

7 March 2008

13960/07 Klesteel Pty Ltd v Anestis Mantzouranis

JUDGMENT

1 HER HONOUR: On 17 December 2003, a mechanic employed by the plaintiff drove a utility truck owned by the plaintiff into the back of the defendant’s car, causing $28,155.35 worth of damage. The mechanic had finished work for the day and had been drinking. Police recorded a concentration of alcohol in his blood of 0.175%. Accordingly, although he was permitted to drive the truck for his own use outside work hours, his driving on that occasion was an unauthorised act.

2 In NSW v Lepore (2003) 212 CLR 511 at [42], Gleeson CJ referred to the following formulation from Salmond, Law Of Torts as the best known formulation of the test to be applied to determine whether an employer will be held vicariously liable for the unauthorised act of an employee:

“An employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes - although improper modes - of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act”.

3 This appeal raises the question of the proper application of that test.

Background

4 This is the second appeal to the Court arising out of the same…

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.

Keep reading for free

Create a free CaseChat account to read Klesteel Pty Ltd v Mantzouranis and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWSC 194
Decision Date: 7 March 2008

CaseChat Overview and Summary

The Local Court appeal of Klesteel Pty Ltd against Mantzouranis involved the determination of the employer's vicarious liability for the actions of an employee who caused damage to the plaintiff's property. The Local Court found the employer liable for the actions of the employee, and the employer appealed this decision to the District Court. The primary issue before the District Court was whether the employer could be held vicariously liable for the employee's actions. The court had to determine whether the employee's actions were an authorised or independent act, which would affect the employer's liability.

The court found that the employee's actions were an independent act, as they were not authorised by the employer and were outside the scope of their employment. The court held that the employer could not be held vicariously liable for the employee's actions, as they were not acting within the scope of their employment or carrying out their employer's business. The court also found that the employer had taken reasonable steps to prevent the employee from causing damage to the plaintiff's property, and therefore the employer could not be held liable for the employee's actions. The court held that the employer was not vicariously liable for the employee's actions, and the appeal was allowed.

The court further found that the Local Court had the power to enter a verdict for the successful appellant, and therefore the District Court could enter a verdict for the employer. The court held that the employer was not liable for the employee's actions, and the plaintiff's claim was dismissed. The court ordered the plaintiff to pay the employer's costs of the appeal. The court held that the employer was not vicariously liable for the employee's actions, and the plaintiff's claim was dismissed. The court's decision provides clarity on the circumstances in which an employer can be held vicariously liable for the actions of an employee and the scope of an employer's duty to prevent damage to a plaintiff's property.

Orders