Nicol v Allyacht Spars Pty Ltd

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan , Dawson , Toohey and Gaudron JJ.

Nicol v. Allyacht Spars Pty Ltd
(1987) 163 CLR 611
6 November 1987

Negligence - Master and servant - Duty of care - Safe system of work System partly devised by injured servant - Contributory negligence.

Decisions

Mason C.J., Toohey and Gaudron JJ.: The respondent, Allyacht Spars Pty. Ltd., is a small company having as its principal business the manufacture and installation of yacht masts and rigging. It also manufactures flag-poles though it does not install them.

At the time of the appellant's accident which gave rise to this litigation, it had three directors, each of whom was employed by the respondent. The appellant, Glenn Anthony Nicol, was one of the directors; Mr. Berg and Mr. Gray were the others. There was a division of labour among the directors. Mr. Gray was largely concerned with administration; in his own words, he "ran most of the office operations". Mr. Berg was in charge of fabrication in the workshop. The appellant described himself as "just an employee of the company".

However, about a month before the accident the respondent undertook the construction of a catamaran for sale. Business was then slack and the work was seen as a form of diversification. This work became the appellant's immediate concern and he was in charge of construction.

Some time before the accident the respondent had supplied a flag-pole to one of its customers to be used for advertising purposes in front of a house which was a "Mater Prize Home". The respondent had nothing to do with the installation of the flag-pole. The organizers of the lottery realized that the advertising banner fixed to the horizontal arm of the flag-pole was not hanging correctly so one of its representatives approached the respondent with a request to check the banner and if necessary remove it and replace it with another.

The evidence did not enable the learned trial judge to conclude who, on the part of the respondent, agreed to do the work but he thought it likely that it was the representative who had sold the flag-pole. In any event the job was of some urgency because the official opening of the home was to take place the coming weekend. From the respondent's point of view, Friday afternoon was the convenient time. It so happened that the appellant and Mr. Berg were the only persons available that afternoon and they agreed they would do the work on their way home at the end of the day.

That Friday, 5 November 1982, the appellant left work driving a Datsun utility which belonged to the respondent but which he used for his own purposes as well. Mr. Berg rode his motor cycle. The two men stopped at a place that hired trestles and, pursuant to a hiring arrangement made earlier, they took delivery of a trestle. The appellant had not made the arrangement to hire the trestle. The appellant and Mr.…