Lee v Wickham Freight Lines Pty Ltd - [2016] NSWCA 209

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lee v Wickham Freight Lines Pty Ltd [2016] NSWCA 209
Hearing dates: 3 August 2016
Decision date: 15 August 2016
Before: Basten JA at [1];
Simpson JA at [37];
Sackville AJA at [38]
Decision:
(1) Dismiss the appeal.
(2) Order the appellant to pay the respondent’s costs in this Court.
Catchwords: TORTS – duty of care – workplace injury – whether duty owed by principal to employee of subcontractor – back injury suffered while restacking pallets during unloading process – work undertaken on premises of third party – principal not controlling subcontractor’s activities – principal not responsible for coordination of activities in loading dock – system of work not devised by principal
Legislation Cited: Workers Compensation Act 1987 (NSW), Pt 5
Cases Cited: Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sydney Water Corporation v Abramovic [2007] NSWCA 248
Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Wooby v Australian Postal Corporation [2013] NSWCA 183; 233 IR 471
Category: Principal judgment
Parties: Mark Lee (Appellant)
Wickham Freight Lines Pty Ltd (Respondent)
Representation:
Counsel:
Mr D B Dooley SC / Ms P Clingan (Appellant)
Mr M T McCulloch SC / Ms T A Berberian
Solicitors:
Carroll & O’Dea Lawyers (Appellant)
Colin Biggers & Paisley (Respondent)

File Number(s): 2015/377005
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 1789

Date of Decision:

4 December 2015

Before:

Harrison J

File Number(s):

2008/289079

Judgment

BASTEN JA: On 14 March 2005 the appellant, Mr Mark Lee, suffered a significant back injury whilst manoeuvring boxes containing cans of soft drink in the back of his tautliner semi-trailer. The injury occurred whilst the trailer was being unloaded at a depot owned and operated by Combined Distribution Management Pty Ltd (“CDM”) at Yennora in Sydney.
At the time of the injury, Mr Lee was employed by Williams Bulk Haulage Pty Ltd (“WBH”). WBH was a subcontractor to the respondent, Wickham Freight Lines Pty Limited (“Wickham”). Wickham had contracted with Woolworths Ltd to transport goods to a Woolworths’ Big W store in Campsie.
The goods being transported were owned by Woolworths. The trailer had been loaded at Woolworths’ Big W distribution centre in Warwick, Queensland. The Campsie premises did not have a loading dock capable of accommodating the tautliner, so that the goods were to be transshipped at Yennora to smaller, rigid body trucks operated by CDM.
The goods on the back of the tautliner were loaded on pallets. The trailer was capable of carrying two rows, 11 pallets deep. The pallets were loaded from the rear of the truck and were unloaded in the same way. The unloading was undertaken by a forklift, also operated by CDM.…

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.

Continue reading Lee v Wickham Freight Lines Pty Ltd

Details

AGLC: Lee v Wickham Freight Lines Pty Ltd [2016] NSWCA 209
Case: [2016] NSWCA 209
Decision Date: 15 August 2016

CaseChat Overview and Summary

The appeal concerned a claim for damages for personal injury brought by the appellant, Mr Lee, against the respondent, Wickham Freight Lines Pty Ltd. Mr Lee, an employee of a subcontractor, suffered a back injury while restacking pallets during an unloading process that occurred on the premises of a third party. The primary dispute was whether Wickham Freight Lines owed Mr Lee a duty of care in relation to the injury he sustained. The matter was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the respondent, as a principal contractor or party involved in the unloading process, owed a duty of care to an employee of a subcontractor to ensure the safety of the work being performed, specifically the restacking of pallets. This involved determining the extent of the respondent's control, or lack thereof, over the subcontractor's activities and the overall system of work in the loading dock.

The Court of Appeal found that Wickham Freight Lines did not owe Mr Lee a duty of care. The reasoning was based on the principle that a principal is generally not liable for the negligence of an independent contractor or its employees unless the principal retains a degree of control over the manner in which the work is performed, devises the system of work, or is responsible for the coordination of activities. In this instance, the Court determined that Wickham Freight Lines did not control the subcontractor's activities, did not devise the system of work for restacking pallets, and was not responsible for the coordination of activities in the loading dock. Therefore, no duty of care was established.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs in the Court of Appeal.

Orders

Orders of the court

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent’s costs in this Court.

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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Medium Neutral Citation:	Lee v Wickham Freight Lines Pty Ltd [2016] NSWCA 209
Hearing dates:	3 August 2016
Decision date:	15 August 2016
Before:	Basten JA at [1]; Simpson JA at [37]; Sackville AJA at [38]
Decision:	(1) Dismiss the appeal. (2) Order the appellant to pay the respondent’s costs in this Court.
Catchwords:	TORTS – duty of care – workplace injury – whether duty owed by principal to employee of subcontractor – back injury suffered while restacking pallets during unloading process – work undertaken on premises of third party – principal not controlling subcontractor’s activities – principal not responsible for coordination of activities in loading dock – system of work not devised by principal
Legislation Cited:	Workers Compensation Act 1987 (NSW), Pt 5
Cases Cited:	Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Sydney Water Corporation v Abramovic [2007] NSWCA 248 Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Wooby v Australian Postal Corporation [2013] NSWCA 183; 233 IR 471
Category:	Principal judgment
Parties:	Mark Lee (Appellant) Wickham Freight Lines Pty Ltd (Respondent)
Representation:	Counsel: Mr D B Dooley SC / Ms P Clingan (Appellant) Mr M T McCulloch SC / Ms T A Berberian Solicitors: Carroll & O’Dea Lawyers (Appellant) Colin Biggers & Paisley (Respondent)
File Number(s):	2015/377005
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2015] NSWSC 1789 Date of Decision: 4 December 2015 Before: Harrison J File Number(s): 2008/289079