Negligence—Master and servant—Duty of care—Safe system of work—Employer's duty to provide—Garbage collector injured by motor vehicle while running across road carrying humper—Practice for collecting truck to traverse one side of street and collectors to collect bins from both sides—Alternative system of truck traversing both sides not acceptable to collectors—Contributory negligence.
Decisions
GIBBS C.J. The facts of this case are set out in the judgment of the other members of the Court, which I have had the advantage of reading. I would join them in holding that the second respondent, Brambles Holdings Limited, was negligent in failing to provide a safe system of work for the appellant, and am in general agreement with the reasons which they have given for reaching that conclusion. I need add nothing on that aspect of the appeal.
2. I am, however, unable to share the view that the conduct of the appellant did not amount to contributory negligence. The appellant came out onto the roadway from behind the stationary garbage collection truck and had run for about five metres before he was struck by the first respondent's vehicle, which was travelling on its correct side of the road. It was dark and there was evidence that the headlights of the first respondent's vehicle could have been observed by a person in the position of the appellant from a distance of about 200 yards away. There was nothing else on the roadway that might have distracted the appellant's attention. The appellant apparently failed to see the first respondent's vehicle until he was almost in front of its headlights; had he seen it earlier, he could have stopped or slowed his pace and allowed it to pass in front of him. In my opinion the only possible conclusion is that the appellant failed to keep a proper look out when crossing the roadway.
3. The fact that the appellant was carrying a humper, a garbage collection bin, on his right shoulder, does not, in my respectful opinion, affect this conclusion. The vehicle was coming from his left and the humper would not have interfered with his vision. In any case, if the humper had impeded his vision, there was all the more reason for him to take care before he crossed the road. Nor did the fact that the garbage collection vehicle had flashing lights designed to act as a warning to approaching vehicles mean that the appellant could reasonably refrain from keeping a proper look out.
4. The case is not, in my opinion, one of the kind of which Commissioner of Railways v. Ruprecht (1979) 142 CLR 563 provides an example, where inadvertence or inattention which has resulted from familiarity and repetition, or preoccupation with matters in hand and the need for concentration upon those matters, does not amount to contributory negligence. The only matter…
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
AGLC
McLean v Tedman [1984] HCA 60
Case
[1984] HCA 60
Decision Date
CaseChat Overview and Summary
McLean v Tedman concerned a dispute between an employer, McLean, and an employee, Tedman, regarding the latter's entitlement to long service leave. Tedman had been employed by McLean as a cleaner from 1968 until 1981. The employer argued that Tedman's employment was intermittent and that he had not completed the continuous period of service required by the relevant legislation. The case was heard by the High Court of Australia.
The central legal issue before the High Court was whether Tedman's employment, which involved periods of absence due to industrial disputes and the employer's own actions, constituted "continuous service" for the purposes of the Long Service Leave Act 1955 (NSW). Specifically, the court had to determine whether breaks in service, particularly those caused by strikes or lockouts, interrupted the continuity of employment as defined by the Act.
The High Court, by majority, held that Tedman was entitled to long service leave. The majority reasoned that the Act defined "continuous service" in a way that excluded certain interruptions, but that strikes and lockouts, unless they were of a duration that indicated a complete cessation of the employment relationship, did not necessarily break continuity. The court applied the principle that the legislation should be interpreted to give effect to its remedial purpose, which was to provide employees with a reward for long and faithful service. The employer's argument that the breaks in service were so significant as to break the continuity of employment was rejected.