Negligence - Breach of implied term of contract of employment - Breach of statutory duty - Claim for damages by a young man - Approximately 17 years of age at date of accident, 26years at trial - Plea of contributory negligence - Whether available in diminution of damages in contract - Damages - Assessment thereof - Third party proceedings - Statutory insurer denying liability to indemnify in reliance on warranty - Whether driver of tractor licensed within the meaning of the Motor Vehicle (Third Party Insurance) Act 1943 as amended - Whether statutory cover excludes liability in contract where concurrent liability in tort.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Result:

Damages for plaintiff $317,583.82.
Third Party to indemnify defendant.

Representation:

Counsel:

Plaintiff:     Mr A Stavrianou
Defendant:     Mr M Greenland
Third Party                   :     Mr J Staude

Solicitors:

Plaintiff:     Stoddart & Co
Defendant:     Greenland Brooksby
Third Party                   :     John G Staude

Case(s) referred to in judgment(s):

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Astley v Austrust Ltd (1999) 73 ALJR 403
Barber v Pigden [1937] 1KB 664 CA
Barisic v Devenport [1978] 2 NSWLR 111
Beach Petroleum NL & Anor v Johnson & Ors (1993) 115 ALR 411
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872
Fox v Wood (1981) 148 CLR 438
Garlick v Mercantile Mutual Insurance [1986] Tas R 238 (NC 6)
GRE v Kitson (1985) 3 ANZ Insurance Cases 60-676
Hawkins v Clayton (1988) 164 CLR 539
Hudson v Ridge Manufacturing Co [1957] 2 QB 348
Jongen v CSR Ltd [1992] A Tort Rep 61,706
Karabotsos v Plastex Industries Pty Ltd [1981] VR 675
Kondis v State Transport Authority (1984) 154 CLR 672
McHale v Watson (1964) 111 CLR 384
McHale v Watson (1966) 115 CLR 199
Milligan v L J Hooker Ltd [1966] 2 NSWLR 765 (CA)
Mulcahy v MVIT, unreported; SCt of WA; Library No 4271; 2 October 1981
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Poland v Tilby and MVIT, unreported; DCt of WA; Library No 397; 26 June 1981
Rae v BHP (1957) 97 CLR 419
Rendlesham v Dunne (1964) 1 Lloyds Rep 192
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Tuncel v Renown Plate Co Pty Ltd [1976] VR 501 (FC)
Watts v Rake (1960) 108 CLR 158
Weber v Birkett [1925] 2 KB 152 CA
Wilson and Clyde Coal Company v English [1938] AC 5

Case(s) also cited:

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR…

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 Leigh v Quito Pty Ltd T/As Benara Nurseries

Details

AGLC: Leigh v Quito Pty Ltd T/As Benara Nurseries [2000] WADC 38
Case: [2000] WADC 38
Decision Date

CaseChat Overview and Summary

The plaintiff, Gavin Deane Leigh, commenced proceedings in the District Court of Western Australia against the defendant, Quito Pty Ltd trading as Benara Nurseries, and third party, Insurance Commission of Western Australia. The plaintiff claimed damages for injuries sustained at the defendant's nursery on 20 March 1990. The plaintiff was 17 years old at the time of the accident. The defendant denied liability and pleaded contributory negligence on the part of the plaintiff. The third party denied liability to indemnify the defendant on the basis that the defendant had breached its warranty that the vehicle would not be driven by an unlicensed person. The plaintiff brought his claim in negligence, breach of contract and breach of statutory duty. The defendant denied liability and pleaded contributory negligence on the part of the plaintiff. The third party denied liability to indemnify the defendant on the basis that the defendant had breached its warranty that the vehicle would not be driven by an unlicensed person. The Court found in favour of the plaintiff on all counts. The Court found that the defendant was negligent and in breach of its duty of care to the plaintiff to provide a safe system and place of work. The Court found that the plaintiff was not contributory negligent and that the defendant was in breach of the implied terms of its contract of employment with the plaintiff that it would provide him both with a safe system of work and safe working plant and equipment. The Court found that the defendant was not entitled to indemnity from the third party. The Court awarded damages to the plaintiff in the sum of $317,583.82.

Orders