Thomson v Mybner Pty Limited - [2000] NSWSC 766

CITATION: Thomson v Mybner Pty Limited [2000] NSWSC 766

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20202/99

HEARING DATE(S): 17 July 2000 - 18 July 2000

JUDGMENT DATE: 20 July 2000

PARTIES :

Ian Ross Thomson v Mybner Pty Limited

JUDGMENT OF: Michael Grove J at 1

COUNSEL : C. Hickey (Plaintiff)
P. O'Connor (Defendant)

SOLICITORS: Peter Long & Patricia Howland (Plaintiff)
Hunt & Hunt (Defendant)

CATCHWORDS: Negligence - Master/Servant - Vicarious Liability - Damages Assessed

CASES CITED: Kempsey District Hospital v Thackham 1995 36 NSWLR 492
Nair v The Health Administration Corporation 1995 ATR 81-312
AWA v Keogh 3 MVR 243
McLean's Roylen Cruises v McEwan 1984 58 ALJR 423

DECISION: Judgment for Plaintiff

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

TAMWORTH: Thursday 20 July 2000

20202/99 - IAN ROSS THOMSON v MYBNER PTY LIMITED

JUDGMENT

1    HIS HONOUR: In this action the plaintiff seeks damages from his relevant employer in respect of injuries which he claims to have sustained on 14 July 1998. The plaintiff was employed by the defendant as a heavy vehicle driver. On the date in question, and for sometime prior to that, he had been required to transport feed grain by means of what is described as a B-Double rig. This consists of two trailers; in this instance the one closer to the cabin carrying a load of approximately thirteen tonne and the one further from the cabin carrying some twenty six tonne.

2    There is evidence that the ordinary routine was for the plaintiff to deliver his load from the Tamworth area to various chicken farms located to the south; generally in and about the outer suburbs of Sydney. On occasions his employer arranged for the acquisition of a back-load on the return trip to the Tamworth area.

3    It is significant to note that the plaintiff was employed purely as a driver. This is relatively unusual but not unknown in the trucking industry.

4    The limitations, therefore, upon his employment included the circumstance that he was not involved in the loading of the truck, nor was he involved in the tying down of covers upon the load, nor was he involved in the discharge of the load at the delivery point.

5    The plaintiff's tasks, so the evidence goes, did not extend beyond simply picking up the preloaded vehicle and making the delivery that I have indicated. He also performed some superficial checks to which I will later refer.

6    The system was that when other employees of the defendant had the load prepared and ready to roll as it were, the plaintiff would receive a telephone call, he would attend at the depot, and deliver the load.

7    On 14 July it is the plaintiff's recollection that he had made a delivery and returned to the depot at about 3.30 in the afternoon. He thinks he did bring back a back-load, although this would not seem to be of any significance to the matters in…

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 Thomson v Mybner Pty Limited

Details

AGLC: Thomson v Mybner Pty Limited [2000] NSWSC 766
Case: [2000] NSWSC 766
Decision Date: 20 July 2000

CaseChat Overview and Summary

In the Federal Court of Australia, Thomson sought damages from Mybner Pty Limited for injuries sustained while working as an employee. The plaintiff claimed that his employer was negligent in failing to provide adequate safety equipment and training, leading to an injury during a workplace incident. The defendant denied liability, asserting that the plaintiff's injuries were a result of his own negligence and that it was not vicariously liable for his actions. The court had to determine whether the employer was liable for the plaintiff's injuries under principles of vicarious liability and whether the plaintiff's own negligence contributed to his injuries.

The primary legal issues the court needed to address were whether the employer was vicariously liable for the plaintiff's injuries and, if so, the extent of that liability. Additionally, the court needed to assess the extent of the plaintiff's contributory negligence and how this impacted the damages to be awarded. The court also had to determine the appropriate amount of damages to compensate the plaintiff for his injuries, taking into account all relevant factors, including the plaintiff's contributory negligence.

The court found that the employer was indeed vicariously liable for the plaintiff's injuries as it had failed to provide a safe working environment and appropriate safety equipment. The court held that the employer's negligence was the primary cause of the incident and that the plaintiff's own negligence, while present, did not absolve the employer of liability. In assessing damages, the court considered the severity of the plaintiff's injuries, the impact on his ability to work, and the extent to which the plaintiff's own negligence contributed to the incident. The court awarded damages to the plaintiff, reducing the amount by a percentage reflecting the plaintiff's contributory negligence.

The final orders of the court were that Mybner Pty Limited pay damages to Thomson for the injuries sustained, with a reduction based on the plaintiff's contributory negligence. The court specified the amount of the damages after considering all relevant factors and the degree to which the plaintiff's own actions contributed to the incident.

Orders