TNT Australia Pty Ltd v Christie

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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 40414/02

MASON P
DAVIES AJA
FOSTER AJA

Wednesday 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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Details
Case
[2003] NSWCA 47
Decision Date

CaseChat Overview and Summary

TNT Australia Pty Ltd (TNT) appealed a decision of the District Court of New South Wales concerning a claim brought by Mr Christie. Mr Christie had suffered injuries while working for TNT, which had engaged a labour hire company, Crown, to provide staff. The dispute centred on whether TNT owed Mr Christie a non-delegable duty of care and whether Crown was negligent in its provision of a faulty jack and inadequate training.

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

It is relevant to recall that the faulty jack was taken by Crown after the accident and promptly repaired by replacing the defective handle. In these circumstances, it is difficult to see what expert evidence would be presently available to cast light on the critical issue. That would not cover a gap in the plaintiff’s case, but it is the context in which the court is asked to infer negligence. In light of the evidence as a whole, I draw that inference.(f) Crown’s appeal relating to rejection of expert evidence One of Crown’s grounds of appeal raises an issue which could lead to a new trial, at least of the Cross Claim against it. It concerns the trial judge’s refusal to allow Crown to rely upon a piece of expert evidence. The plaintiff’s lawyers had engaged a consulting engineer (Mr Buckland of Simpson Associates Forensic Engineering). His report, dated 31 July 2000 (CB 124) addresses several issues relating to the faulty jack. It contains the following statement:There appears to be no link between the 3rd speed problem and the reversing malfunction and, apart from the Plaintiff’s statement, the writer has seen no other record reporting that specific malfunction. That includes the testing for, an explanation of, or the repair of the malfunction. The report was served on all parties by the plaintiff’s solicitors, but was not tendered by the plaintiff. Crown’s attempts to tender it at trial were rejected because of an apparent procedural default which the judge was not prepared to excuse. The plaintiff had served the report on TNT in about October 2000 (CB 84), before or at about the time when TNT joined Crown in the proceedings by filing its Cross Claim against Crown. The report was provided to Crown about the same time and well before the trial, which commenced Friday 2 March 2001. Part 28 r8(3) of the District Court Rules provides:Unless the Court otherwise orders, in proceedings to which this rule applies, each party to the proceedings shall, at least 28 days before the trial, serve expert’s reports … on each other party who has an address for service in the proceedings. The rule applies to the subject proceedings and the report in question is an “expert’s report” as defined in subrule (2). Subrule (6) provides:(6) In proceedings to which this rule applies, except with the leave of the Court or by consent of the parties -(a)the oral expert evidence in chief of any expert is not admissible unless that evidence is covered by the expert’s report served in accordance with this rule;and(b)neither an expert’s report nor a hospital (?) report is admissible when tendered under sections 63, 64 or 69 of the Evidence Act 1995 unless is has been served in accordance with this rule. Rule 9(1) provides:(1) Subject to rule 9C(b)(ii), where an expert’s report is served in accordance with rule 8 or an order is made under rule 8(3), the report is admissible as evidence of the expert’s opinion and, where the expert’s direct oral evidence of a fact upon which the opinion was formed would be admissible, as evidence of that fact, without further evidence, oral or otherwise.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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