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White v Malco

White v Malco

Case [1999] NSWSC 1055 29 October 1999

Negligence

Duty of Care

Breach of Contract

Unconscionable Conduct

Tort Law

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CITATION: White v Malco [1999] NSWSC 1055

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 20152/98

HEARING DATE(S): 16/11/98-20/11/98,24/11/98-26/11/98, 31/05/99-4/06/99

JUDGMENT DATE:
29 October 1999

PARTIES :

Bruce Charles White - Plaintiff
Malco Engineering Pty Ltd - Defendant

JUDGMENT OF: James J

COUNSEL : B Toomey QC/Mr Dooley - Plaintiff
MJ Neil QC/I Mescher - 1st Defendant
G Swinton - 2nd Defendant
D Nock SC - cross-defendant
C Branson QC/D Conti - cross-defendant
I Faulkner - cross-defendant

SOLICITORS: Adams Leyland - Plaintiff
Cutler Hughes & Harris
Leitch Hasson & Dent
Ebsworth & Ebsworth
Harris Leberman & Boyd
Henry Davis York

CATCHWORDS: Negligence - personal injuries - employer's duties - hire of goods - reasonably fit for purpose

DECISION: Preliminary judgment

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Friday 29 October 1999

FILE NO. - 20152/98 - White v Malco Engineering Pty Limited

JUDGMENT
HIS HONOUR:

1 HIS HONOUR: In these proceedings the plaintiff, Bruce Charles White, sued the first defendant Malco Engineering Pty Limited (“Malco”) and the second defendant Skilled Engineering Pty Limited (“Skilled”) for damages for personal injuries allegedly suffered in an accident occurring on Saturday 4 November 1995 at the premises of Australian Newsprint Mills (“ANM”) at Albury. At the time of the accident the plaintiff was employed by Skilled but was working in the operations of Malco, to whom Skilled had hired his labour. The plaintiff was working at the premises of ANM with two employees of Malco, named Peter Dyson (“Mr Dyson”) and Leslie Onody (“Mr Onody”). When he was injured the plaintiff was engaged in attempting to jump start an item of equipment, which was variously referred to in the evidence as an elevated work platform, a boom lift or a cherry picker and which, for the sake of convenience, I will refer to as “the boom lift”, by using the battery of a Manitou forklift (“the forklift”), which had been positioned alongside the boom lift. During this operation the forklift started moving forwards, trapped the plaintiff’s right foot thereby throwing him to the ground and then ran over part of the plaintiff’s right leg, injuring the leg.
2 The plaintiff’s case against Malco, succinctly stated, was that Malco owed the plaintiff duties analogous to those owed by an employer to an employee and had failed to take reasonable care to provide safe plant and equipment and a safe system of work (in particular, it was alleged that the forklift was defective) and that by reason of these breaches of duty the plaintiff had been injured, or, alternatively, Malco was vicariously liable for casual acts of negligence by its employee Mr Onody, by reason of which the plaintiff had been injured. The plaintiff’s case against Skilled, succinctly stated, was that Skilled, as the actual employer of the plaintiff, was subject to the duties of an employer, which were non-delegable, that Skilled itself had failed to discharge those duties and Skilled was liable for failures by Malco to take reasonable care to…

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.

Continue reading White v Malco

Details

AGLC: White v Malco [1999] NSWSC 1055
Case: [1999] NSWSC 1055
Decision Date: 29 October 1999

CaseChat Overview and Summary

The matter before the court was an appeal brought by the plaintiff, Mr White, against a decision that had dismissed his claim for damages for personal injuries. Mr White had suffered an injury while using equipment provided to him by his employer, Malco, which had been hired from a third party. Mr White alleged that the equipment was defective and had caused his injury, and that Malco was negligent in hiring the equipment in the first place. The court was required to determine whether Malco had breached its duty of care to Mr White, and whether the equipment was reasonably fit for purpose.

The court examined the nature of the employer's duty to provide safe equipment, and the extent to which that duty extended to equipment that had been hired. It was noted that the employer had a non-delegable duty to ensure that the equipment provided to employees was reasonably safe, and that this duty extended to equipment that had been hired. The court also considered the concept of "fitness for purpose" and the extent to which this applied to hired equipment. Ultimately, the court found that Malco had breached its duty of care to Mr White by hiring equipment that was not reasonably fit for purpose, and that this breach had caused Mr White's injuries.

As a result of this finding, the court allowed Mr White's appeal and remitted the matter to the lower court for the assessment of damages. The court emphasised the importance of employers taking reasonable care to ensure that any equipment provided to employees, whether owned or hired, is safe and fit for purpose. The court also noted that the concept of "fitness for purpose" applied equally to hired equipment, and that employers could not rely on the hirer's representations about the suitability of the equipment without conducting their own checks.

Orders