Thorley v GIO Australia Ltd and AMP Services Ltd - [2005] NSWCA 209

CITATION:
Thorley v GIO Australia Ltd and AMP Services Ltd [2005] NSWCA 209

HEARING DATE(S):
08/04/05

JUDGMENT DATE:

27 June 2005

JUDGMENT OF:
Hodgson JA at 1; Stein AJA at 2; Campbell AJA at 3

DECISION:
Appeal dismissed with costs.

CATCHWORDS:
Negligence - employee injured removing computer from car boot - failure to make risk assessment - failure to instruct - foreseeability - Shirt calculus - conduct of trial - adequacy of reasons.

CASES CITED:
Wyong Shire Council v Shirt (1980) 146 CLR
Maviglia v Maviglia [1999] NSWCA 188
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28
Romeo v Conservation Commission of The Northern Territory [1998] 192 CLR 431
Tame v The State of New South Wales [2002] 211 CLR 317
Misfud v Campbell (1991) 21 NSWLR 725

PARTIES:
Jane Thorley - Appellant
GIO Australia Ltd - First Respondent
AMP Services Ltd - Second Respondent

FILE NUMBER(S):
CA 40275/04

COUNSEL:
Miss S Norton SC with Mr P N Khandhar - Appellant
Mr A C A Bridge SC with Mr W P Y Austron - Respondents

SOLICITORS:
Bryden's Law Office - Appellant
Hicksons - Respondents

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
6759/02

LOWER COURT JUDICIAL OFFICER:
Quirk DCJ

- 1 -

CA40275/04
DC 6759/02

HODGSON JA
STEIN AJA
M W CAMPBELL AJA
Monday 27 June 2005

JANE THORLEY v GIO AUSTRALIA LTD and AMP SERVICES LTD

Judgment

1 HODGSON JA: I agree with M W Campbell AJA.

2 STEIN AJA: I agree with M W Campbell AJA.

M W CAMPELL AJA:

Introduction

3 This is an appeal from a judgment of her Honour Judge Quirk of the District Court for the respondents in an action brought by the appellant seeking damages in respect of injury to her back.

4 Two defendants were named in the action being serial employers of the appellant in, essentially, the same business. They were represented by the same solicitor and counsel at the trial. This was also the position on the appeal. It would appear that no distinction was drawn between the respondents at the trial so far as liability was concerned.

5 The claim was based on an allegation of frank injury on 13 February 2001, when the appellant was employed by the first respondent and also an allegation based upon the “nature and conditions of employment” from 22 November 1998 to 27 November 2001, the appellant having commenced to be employed by the second respondent from 19 January 2001.

6 In these circumstances particular findings might have given rise to some difficulty, however, they were not made and, having regard to my view of this Appeal, it is unnecessary, except as a matter of history, to distinguish between the respondents.

7 It is convenient to deal with one other preliminary matter.

8 The Judge dealt with the claim on the basis that the frank injury did occur when the appellant removed a computer bag and its contents from the boot of a car. She dealt with the nature and…

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

Case: [2005] NSWCA 209
Decision Date: 27 June 2005

CaseChat Overview and Summary

The appeal concerned a claim for damages for negligence brought by the appellant, Mr. Thorley, against his employer, GIO Australia Ltd, and AMP Services Ltd. Mr. Thorley sustained injuries when he was removing a computer from the boot of his car. The dispute centred on whether the respondents had breached their duty of care to Mr. Thorley by failing to conduct an adequate risk assessment and provide sufficient instructions regarding the safe removal of the computer. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in finding that the respondents had breached their duty of care to the appellant. Specifically, the court was required to consider whether the risk of injury to Mr. Thorley was foreseeable, and if so, whether the respondents had taken reasonable precautions to mitigate that risk. This involved an assessment of the adequacy of the risk assessment conducted by the employer and the instructions provided to the employee concerning the task.

The Court of Appeal upheld the trial judge's decision, finding that the risk of injury was not so obvious or significant as to require a formal risk assessment or specific instructions beyond those already provided. The court applied the principles of negligence, considering the foreseeability of harm and the reasonableness of the employer's conduct in light of the circumstances. The judges concluded that the employer had not breached its duty of care, as the risk was minor and the employee was aware of the general dangers associated with manual handling.

The appeal was dismissed, and the appellant was ordered to pay the respondents' costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thorley v GIO Australia Ltd and AMP Services Ltd [2005] NSWCA 209
HEARING DATE(S):	08/04/05
JUDGMENT DATE:	27 June 2005
JUDGMENT OF:	Hodgson JA at 1; Stein AJA at 2; Campbell AJA at 3
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	Negligence - employee injured removing computer from car boot - failure to make risk assessment - failure to instruct - foreseeability - Shirt calculus - conduct of trial - adequacy of reasons.
CASES CITED:	Wyong Shire Council v Shirt (1980) 146 CLR Maviglia v Maviglia [1999] NSWCA 188 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 Romeo v Conservation Commission of The Northern Territory [1998] 192 CLR 431 Tame v The State of New South Wales [2002] 211 CLR 317 Misfud v Campbell (1991) 21 NSWLR 725
PARTIES:	Jane Thorley - Appellant GIO Australia Ltd - First Respondent AMP Services Ltd - Second Respondent
FILE NUMBER(S):	CA 40275/04
COUNSEL:	Miss S Norton SC with Mr P N Khandhar - Appellant Mr A C A Bridge SC with Mr W P Y Austron - Respondents
SOLICITORS:	Bryden's Law Office - Appellant Hicksons - Respondents

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	6759/02
LOWER COURT JUDICIAL OFFICER:	Quirk DCJ