Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Toll Pty Ltd v Harradine [2016] NSWCA 374 Hearing dates: 15 November 2016 Decision date: 21 December 2016 Before: Meagher JA at [1];
Sackville AJA at [2];
Schmidt J at [113]Decision: (1) Appeal allowed.
(2) Set aside the judgment for the respondent in the sum of $1,070,499.00 given on 3 March 2016.
(3) Set aside the costs order made against the appellant by the primary Judge on 4 March 2016.
(4) Direct the parties to bring in agreed short minutes of order on or before 25 January 2017 giving effect to these reasons for judgment.
(5) If the parties are unable to agree, each should file short minutes of order proposed together with brief written submissions not exceeding four pages on or before 25 January 2017.Catchwords: MOTOR VEHICLE ACCIDENT – personal injuries – operator of forklift at depot negligently fails to secure a stillage (partially enclosed cage) to the raised tines of the forklift – stillage slips from the tines near the end of unloading operation from the stillage to a container – worker unloading sacks injured when struck by the slipping tillage – worker placed foot on mezzanine floor of trailer – whether worker’s injuries occurred “during… the driving of a vehicle” within the meaning of s 3A(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) – whether the worker’s injuries were sustained as a consequence of driving the forklift – whether displacement of the stillage causally related to the driving of the forklift
DAMAGES – whether primary judge erred in assessing damages for past and future loss of earning capacity – whether net income of the comparator properly assessed for the purpose of assessing damagesLegislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 3, 3A
Suitors Fund Act 1951 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1996 (NSW)Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; 25 MVR 373
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Fabre v Arenales (1992) 27 NSWLR 437; 15 MVR 303
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Fuller-Lyons v New South Wales [2015] HCA 31; (2015) 89 ALJR 824
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89; [2004] HCA 24
Jay Anthony Harradine v Toll Pty Ltd (unrep, District Court, 3 March 2016)
Jones v Dunkel (1959) 101 CLR 298; [1954] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (2014) 67 MVR 494; [2014] NSWCA…
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- Case
- [2016] NSWCA 374
- Decision Date
CaseChat Overview and Summary
The court was required to determine two primary legal issues. Firstly, whether the circumstances of Mr Harradine's injury, which occurred near the end of the unloading operation when he placed his foot on the mezzanine floor of a trailer, constituted an event occurring "during the driving of a vehicle" as contemplated by the Act. Secondly, the court had to consider whether the displacement of the stillage and the resulting injury were causally related to the driving of the forklift, or if the negligent failure to secure the stillage to the forklift's tines was the operative cause. Ancillary to these issues, the court also considered whether the primary judge erred in assessing damages for past and future loss of earning capacity, specifically concerning the net income of a comparator.
The Court of Appeal allowed the appeal, setting aside the judgment for the respondent and the associated costs order. The court reasoned that the injury did not occur "during the driving of a vehicle" in the sense required by the Act. The negligent act of failing to secure the stillage was found to be the cause of the injury, and this failure was not intrinsically linked to the act of driving the forklift itself. The court concluded that the injury was not a consequence of the driving of the forklift, but rather a consequence of the negligent loading and securing of the stillage. Consequently, the *Motor Accidents Compensation Act 1999* (NSW) did not apply to the claim. The court directed the parties to bring in agreed short minutes of order to give effect to these reasons.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside the judgment for the respondent in the sum of $1,070,499.00 given on 3 March 2016.
(3) Set aside the costs order made against the appellant by the primary Judge on 4 March 2016.
(4) Direct the parties to bring in agreed short minutes of order on or before 25 January 2017 giving effect to these reasons for judgment.
(5) If the parties are unable to agree, each should file short minutes of order proposed together with brief written submissions not exceeding four pages on or before 25 January 2017.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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