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Smith v Brambles Australia Ltd

Smith v Brambles Australia Ltd

Case [2011] NSWSC 963 26 August 2011

Negligence

Duty of Care

Causation

Contributory Negligence

Compensatory Damages

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Smith v Brambles Australia Ltd [2011] NSWSC 963
Hearing dates: 23 May 2011, 24 May 2011, 25 May 2011, 26 May 2011
Decision date: 26 August 2011
Before: Schmidt J
Decision:
For the reasons given, I find for the plaintiff and propose to make orders against the defendants, in accordance with the terms of this judgment. The usual order as to costs would be that they follow the event. If the parties wish to be heard on costs, they should approach.
Various calculations still need to be undertaken, to give effect to the judgment. The parties should confer and bring in short minutes of the orders reflecting this judgment. They have liberty to approach in the event of disagreement as to those calculations.

Catchwords: TORTS - negligence - serious workplace injury - employee experienced crane operator - collapse of crane - crane modified for former owner and operator of crane - modification created risk of collapse of crane - serious risk of injury resulted for anyone operating crane once damaged - extension of time to bring proceedings against former employer - expert evidence - analogies drawn with a car - whether company who modified crane owed a duty of care - whether duty breached - whether causation proven - whether former owner and operator of crane owed a duty of care - whether duty breached - whether causation proven - whether former employer breached duty of care - whether causation proven - Occupational Health and Safety Act 2000 regulations - contributory negligence - whether employee's oversight an act done without reasonable care for own safety- contributory negligence not found - cross claims - whether former owner and operator can claim full indemnity - whether former employer owed a duty of care by former owner and operator and company that made modifications - duty of care found - no full indemnity for former employer - all defendants proportionately liable - employees injuries - 15% whole person assessment - back pain result of injuries - employee mitigated his damages - s 151Z of the Workers Compensation Act 1987 applied - DAMAGES - non economic loss - economic loss - past economic loss - future economic loss - future medical expenses - paid domestic assistance
Legislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Occupational Health and Safety Act 2000
Sale of Goods Act 1923
Trade Practices Act 1974 (Cth)
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
J Blackwood & Son Ltd v Skilled Engineering Ltd [2008] NSWCA 142
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349
Dasreef Pty…

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 Smith v Brambles Australia Ltd

Details

AGLC: Smith v Brambles Australia Ltd [2011] NSWSC 963
Case: [2011] NSWSC 963
Decision Date: 26 August 2011

CaseChat Overview and Summary

The plaintiff, Smith, brought an action against Brambles Australia Ltd, the current owner and operator of a crane, and others, following a serious workplace injury. Smith, an experienced crane operator, suffered injuries when the crane collapsed. The crane had previously been modified by a different company for its former owner and operator, who was also a defendant. The modification allegedly created a risk of collapse, leading to Smith's injuries. The plaintiff sought an extension of time to bring proceedings against the former employer, expert evidence was presented, and analogies were drawn with a car. The court was required to determine whether the company that modified the crane owed a duty of care, if that duty was breached, and if causation was proven. Similar questions were asked regarding the former owner and operator of the crane and the former employer. The Occupational Health and Safety Act 2000 regulations were considered, as well as contributory negligence and cross claims. The court found that the former owner and operator and the company that made the modifications owed a duty of care, but the former employer was not granted full indemnity. All defendants were held proportionately liable for the employee's injuries. The plaintiff was awarded damages for non-economic loss, economic loss, past economic loss, future economic loss, future medical expenses, and paid domestic assistance.

The court held that the company that modified the crane owed a duty of care to the plaintiff, and this duty was breached when the modification created a risk of collapse. The risk was serious, and the court found that the modification was the cause of Smith's injuries. The former owner and operator of the crane was also found to owe a duty of care, and this duty was breached when they failed to properly maintain the crane after the modification. The court found that the former employer owed a duty of care to the plaintiff, but this duty was not breached. However, the court held that all defendants were proportionately liable for the employee's injuries. The court found that Smith's contributory negligence did not bar his claim, and that the former employer was not entitled to full indemnity from the former owner and operator and the company that made the modifications. The court awarded damages for non-economic loss, economic loss, past economic loss, future economic loss, future medical expenses, and paid domestic assistance. The court also found that Smith had mitigated his damages, and applied s 151Z of the Workers Compensation Act 1987 to reduce the damages awarded.

Orders