NEW SOUTH WALES COURT OF APPEAL
CITATION: TNT AUSTRALIA PTY LIMITED v CHRISTIE & 2 ORS; CROWN EQUIPMENT PTY LIMITED v CHRISTIE & 2 ORS; MANPOWER SERVICES (AUST) PTY LIMITED v CHRISTIE & 2 ORS [2003] NSWCA 47
FILE NUMBER(S):
40473/01; 40474/01; 40414/02
HEARING DATE(S): 11, 12 June 2002
JUDGMENT DATE: 12/03/2003
PARTIES:
TNT AUSTRALIA PTY LIMITED v Brett Kenneth CHRISTIE & 2 ORS; CROWN EQUIPMENT PTY LIMITED v Brett Kenneth CHRISTIE & 2 ORS; MANPOWER SERVICES (AUST) PTY LIMITED v Brett Kenneth CHRISTIE & 2 ORS
JUDGMENT OF: Mason P Davies AJA Foster AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 250/00
LOWER COURT JUDICIAL OFFICER: Delaney DCJ
COUNSEL:
M Holmes QC/ G Parker (TNT)
J D Hislop QC/ M J Ward (Crown)
L V Gyles (Manpower)
W P Kearns SC/ H Kelly (Christie & 2 Ors)
SOLICITORS:
Ebsworth & Ebsworth (TNT)
Pricewaterhouse Cooper Legal (Crown)
Hunt & Hunt (Manpower)
Malouf Solicitor (Christie & 2 Ors)
CATCHWORDS:
Negligence - non-delegable duty of care - labour hire business / "body-hire" company - duty to take reasonable care - where relationship between parties analogous to employer/employee
Safety of plant/machinery - employee training in safety procedures - repair and maintenance - inference of negligence - implied warranty of fitness for purpose - contractual indemnity. (D)
LEGISLATION CITED:
District Court Rules, Part 28 r8(3), r9
Supreme Court Act 1970, s75A(10)
Law Reform (Miscellaneous Provisions) Act 1946 s59(1)(c)
Workers Compensation Act 1987 s151ZA
Occupational Health, Safety and Welfare Act 1983 s15(1)
DECISION:
See paras 145-8
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40473/01
CA 40474/01
CA 40414/02MASON P
DAVIES AJA
FOSTER AJAWednesday 12 March 2003
TNT AUSTRALIA PTY LIMITED v BRETT KENNETH CHRISTIE & 2 ORS
CROWN EQUIPMENT PTY LIMITED v BRETT KENNETH CHRISTIE & ANOR
MANPOWER SERVICES (AUST) PTY LIMITED v BRETT KENNETH CHRISTIE & 2 ORS
Facts:
The plaintiff (Christie) was employed by an employment agency, Manpower Services (Australia) Pty Ltd. Manpower assigned the plaintiff to work at a brewery operated by TNT. The plaintiff was injured when a walk-behind forklift (a “pallet jack”) he was using to pick up beer orders malfunctioned and moved backwards over his foot. The pallet jack was owned and serviced by Crown Equipment Pty Ltd and leased to TNT.The plaintiff sued both Manpower and TNT. At trial, Delaney DCJ found that Manpower owed a non-delegable duty of care, which it had breached by “failing to adequately instruct and provide proper assistance to the plaintiff in the performance of his duties and failing to properly inspect, maintain and provide appropriate equipment for the plaintiff to undertake this [sic] task.” He also found that TNT “owed duties to the plaintiff analogous to the duties of an employer.”
Cross-claims:
In the first cross-claim, brought by Manpower against TNT, Delaney DCJ held that damages be apportioned 75% to TNT; 25% to Manpower. In the second cross-claim, brought by TNT against Crown, he apportioned the damages 50% to Crown…
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- Case
- [2003] NSWCA 47
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether TNT owed Mr Christie a non-delegable duty of care, analogous to that of an employer, despite the intermediary labour hire arrangement with Crown. Additionally, the court had to determine if Crown breached its duty of care to Mr Christie by failing to ensure the safety of the machinery provided and by not adequately training him in its safe operation. A further issue arose from Crown's appeal regarding the trial judge's rejection of expert evidence that Crown sought to rely upon.
The court found that the relationship between TNT and Mr Christie, through the labour hire arrangement with Crown, was sufficiently analogous to an employer-employee relationship to impose a non-delegable duty of care on TNT. This duty required TNT to take reasonable care for the safety of its workers, including those supplied by a labour hire company. The court inferred negligence on the part of Crown, noting that the faulty jack was repaired after the accident by replacing the defective handle, suggesting a clear defect. The court also addressed Crown's appeal concerning the rejection of expert evidence, noting that the expert's report had not been served in accordance with the District Court Rules, and the trial judge had exercised his discretion in refusing to allow its late tender.
The court dismissed Crown's appeal regarding the rejection of expert evidence. The primary appeal by TNT was also dismissed, upholding the trial judge's findings of negligence and the imposition of a non-delegable duty of care.
Orders
Orders of the court
See paras 145-8
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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