Twynam Pastoral Co Pty Ltd v Bennett

[2002] NSWCA 319

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Twynam Pastoral Company Ptd Ltd v Bennett [2002]  NSWCA 319

FILE NUMBER(S):
40997/01

HEARING DATE(S):    29 July 2002

JUDGMENT DATE:      23/09/2002

PARTIES:
Twynam Pastoral Company Pty Ltd (Appellant)
Donald Bennett (First Respondent)
Hay Rural Services Pty Ltd (Second Respondent)
National Grazing Services Pty Ltd (Third Respondent)

JUDGMENT OF:        Sheller JA Beazley JA Heydon JA   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     DC 41/99

LOWER COURT JUDICIAL OFFICER:   Williams DCJ

COUNSEL:
Mr J D Hislop QC/Mr J Roberts (Appellant)
Mr D R Conti (First Respondent)
Mr C R R Hoeben SC/Mr B D Dooley (Second Respondent)
Mr J W Dodd (Third Respondent)

SOLICITORS:
Landerer & Company (Appellant)
Robb & Associates (First Respondent)
Leitch Hasson Dent (Second Respondent)
Dibbs Barker Gosling (Third Respondent)

CATCHWORDS:
Tort - negligence - duty of care - occupier's liability - duty to provide safe workplace - whether duty fulfilled - whether conduct of plaintiff reasonably foreseeable
Tort - negligence - duty of care - employer's liability - knowledge of employer - whether sufficient to raise duty of care - ND

LEGISLATION CITED:

DECISION:
The appeal and cross-appeal are dismissed.  The appellant is to pay the costs of the respondents (including the costs of the cross-appellant's cross-appeal).

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40997/01
DC 41/99

SHELLER JA
BEAZLEY JA
HEYDON JA

23 September 2002

TWYNAM PASTORAL COMPANY PTY LTD v BENNETT

Tort – negligence – duty of care – occupier’s liability – duty to provide safe workplace – whether duty fulfilled – whether conduct of plaintiff reasonably foreseeable
Tort – negligence – duty of care – employer’s liability – knowledge of employer – whether sufficient to raise duty of care

The plaintiff was a shearing overseer employed by the second and third defendants, who were shearing contractors. The first defendant, a pastoral company which owned and managed grazing properties, engaged the second and third defendants to carry out a shearing operation. The second and third defendants asked the plaintiff to attend the first defendant’s property to oversee that operation.
In the course of preparations, the first defendant’s “head jackeroo” asked the plaintiff to repair a faulty hydraulic wool press located in the defendant’s shearing shed. The plaintiff required elevation above the press to complete the repairs. Where the press stood, elevation could be achieved by use of a ladder or by standing upon a greasy monkey which was part of the press. Alternatively, elevation could be achieved by moving the press to a nearby platform. A request by the plaintiff to the jackeroo for supply of a suitable ladder was not complied with. The plaintiff was unable to move the press independently and no workmen were supplied to move it. The plaintiff sustained personal injury when he engaged in examination of the machine from the greasy monkey and fell. He sued in negligence alleging that: (1) the first defendant had failed to provide a safe workplace; and (2) the second and…