NEW SOUTH WALES COURT OF APPEAL
CITATION:
Parsons v J.J. Richards & Sons Pty Limited [2008] NSWCA 331
FILE NUMBER(S):
40539/07
HEARING DATE(S):
27 October 2008
JUDGMENT DATE:
2 December 2008
PARTIES:
Frederick Michael Parsons (Appellant)
J.J. Richards & Sons Pty Limited (Respondent)
JUDGMENT OF:
Beazley JA Gyles AJA Hislop J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 2607/06
LOWER COURT JUDICIAL OFFICER:
Balla DCJ
LOWER COURT DATE OF DECISION:
9 August 2007
COUNSEL:
LT Grey (Appellant)
PJ O'Connor (Respondent)
SOLICITORS:
Slater & Gordon (Appellant)
Ellison Tillyard Callanan (Respondent)
CATCHWORDS:
TORTS
negligence
where employee garbage collector sustained severe back injury whilst dragging fallen heavy garbage bin in order to remove driveway obstruction
where employee aware of weight of garbage bin
where certain directions given to employees by employer concerning clean-up of spillages and removal of obstructions and movement of heavy garbage bins
whether directions given sufficient
LEGISLATION CITED:
CATEGORY:
Principal judgment
CASES CITED:
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349
Harrison v Lau Nay Nominees Pty Ltd t/as Abs Transport [2004] NSWCA 18
Herning v GWS Machinery Pty Ltd [2005] NSWCA 263
McLean v Tedman (1984) 155 CLR 306
O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225
Turner v The State of South Australia (1982) 42 ALR 669; 56 ALJR 839
TEXTS CITED:
DECISION:
Appeal dismissed with costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40539/07
BEAZLEY JA
GYLES AJA
HISLOP JTuesday 2 December 2008
Frederick PARSONS v JJ RICHARDS & SONS PTY LIMITED
Judgment
BEAZLEY JA: I have had the advantage of reading in draft the reasons of Gyles AJA.
The facts and the reasons of the trial judge are fully set out in his Honour’s reasons and it is not necessary to repeat them. I have, however, come to a different conclusion in respect of liability from his Honour, in respect of which I am able to express my views briefly.
In Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349 the High Court reiterated the well-known principles governing an employer’s duty of care. The Court said, at [12]:
“The appellant relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury (Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J). If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards (Smith v The Broken Hill…
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- Case
- [2008] NSWCA 331
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the employer had breached its duty of care to the appellant by failing to implement sufficient safety measures concerning the movement of heavy garbage bins, and whether the directions and procedures provided by the employer were reasonable in the circumstances. Specifically, the court considered whether the employer should have provided an unequivocal directive that employees should not attempt to move heavy bins themselves, or if the existing procedures, which included instructions not to lift anything too heavy and methods to summon assistance or report issues, were adequate.
The Court of Appeal, comprising Beazley JA, Gyles AJA, and Hislop J, found that while the primary judge may have erred in some factual findings regarding the cause of the bin falling, this error did not affect the ultimate outcome. The primary judge had accepted that heavy bins were dropped from garbage trucks from time to time and that the appellant knew he could not lift the bin but attempted to drag it. The court agreed with the primary judge that it was unrealistic to suggest that employees should not play any role in assessing and moving heavy bins, as a worker would always need to make an assessment of weight. The existing procedures, which the appellant had not followed, were considered reasonable, taking into account the employer's duty of care.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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