Harrison v Lau Nay Nominees P/L t/as Abs Transport [2004] NSWCA 18 (18 February 2004)

Last Updated: 19 February 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Harrison v Lau Nay Nominees P/L t/as Abs Transport [2004] NSWCA 18

FILE NUMBER(S):

40037 of 2003

HEARING DATE(S): 18/11/03

JUDGMENT DATE: 18/02/2004

PARTIES:

John Harrison

v

Lau Nay Nominees Pty Limited t/as ABS Transport & 2 Ors

JUDGMENT OF: Meagher JA Ipp JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1181 of 2001

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

COUNSEL:

A: G R Petty SC & B McManamey

1R: G Little SC & P O'Connor

2R: J Hislop QC & D S Weinberger

SOLICITORS:

A: Maurice Blackburn Cashman

1R: A O Ellison

2R: Dexter Healey

CATCHWORDS:

APPEAL - TORT - NEGLIGENCE - PERSONAL INJURY - COMPENSATION - Appeal against two respondents from a District Court decision (in favour of three defendants) - whether transport company employer is liable for injury to its employee arising at their customers' freight pick-up sites and loadings - whether employer, or the employer's customers, are liable for injuries arising from the truck driver employee's assumption of risk in loading truck - why the third defendant was not joined as a third respondent to the appeal. Held: Employer/first respondent not liable by virtue of an employer/employee relationship alone - by majority: (a) although the second respondent did act carelessly, it did not breach any duty of care owed to the appellant - (b) appellant acquiesced to second respondent's carelessness - appeal against both respondents dismissed with costs.

LEGISLATION CITED:

DECISION:

1. Appeal against first respondent dismissed with costs (3:0). 2. Appeal against second respondent, by majority, dismissed with costs (2:1).

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40037 of 2003

MEAGHER JA

IPP JA

McCOLL JA

Wednesday, 18 February 2004

HARRISON v LAU NAY NOMINEES PTY LIMITED & Ors

FACTS:

The appellant was born in 1945, had been driving trucks and loading and unloading semi-trailers since 1963, and worked as a truck driver for the first respondent since 1991.

On Friday 19 November 1999 the appellant set out from the first respondent's Chipping Norton depot, where he picked up his semi-trailer, a prime mover with one pre-loaded trailer attached, to take to Melbourne.

The appellant had been directed to pick up a second trailer pre-loaded with large crates of extruded aluminium from the second respondent's premises in Penrith. The second trailer was not completely full. The appellant allegedly complained about this to the second respondent, and was told in reply that they he would not receive any assistance in this regard.

The appellant was also directed to make another (third) pick-up for the trip to Melbourne, of a `grader blade' from Cooks Construction Pty Limited (the third defendant in the District Court proceedings), in Sutton.

The appellant reached the Sutton address on Saturday 20 November 1999, to find the grader blade hanging on a crane sling, ready to be loaded into the second trailer by crane operated by an attendant: "Bob", however, some of the crates in the second trailer had moved around and fallen. The grader wouldn't fit properly into the second trailer until the crates had been rearranged, and the appellant asked Bob for such assistance, to use the crane to redistribute the trailer's existing load of crates, before loading the grader onto it. Bob (the attendant) refused to unload the crane sling, so the appellant then asked Bob to help him lift and push the crates into alignment, which Bob agreed to help him do.

Whilst the appellant and Bob lifted one such crate (weighing 164 kilograms) back up onto its position above head-height (leaving the other two crates which had fallen or moved on the trailer floor), the appellant apparently injured his lower back whilst turning his trunk during the heavy lifting.

THE DECISION:

AGAINST THE FIRST RESPONDENT (unanimous):

The employer / first respondent is not liable for an employee's injury for the single reason of being the employer: Pro-Krane Pty Ltd v Nobbs (Nov 1996, BC 9605515) (per Cole JA, Mahoney and Handley JJA concurring) applied; appeal against the first respondent dismissed with costs.

AGAINST THE SECOND RESPONDENT

Per Ipp JA (McColl JA concurring): Although the second respondent stacked the trailer carelessly, it does not follow that this constituted a breach of duty on the part of the second respondent that caused the appellant to suffer damage. The appellant acknowledged that it was his own responsibility to ensure the load was properly positioned and secured, and, despite complaining, failed to instigate any action with the second respondent at the time and place where the loading was carried out.

Further, the second respondent did not know (and could not have reasonably foreseen) that another party would require the appellant to load additional materials into the second trailer for the same trip.

The appellant had many years experience in loading and unloading these types of trucking trailers, and was fully aware that a crate weighing in excess of 160 kilograms would require particular care and mechanical strength, and the trial judge found that the appellant was foolhardy to try to lift it. The trial judge also found that the second respondent could not have foreseen that the appellant would act with such extreme disregard for his own safety. These two points are affirmed on appeal.

Meagher JA (in dissent): As the second respondent loaded the second trailer carelessly, a reasonable person in the second respondent's situation must have known that such negligently-packed crates have a tendency to collapse, causing unknown damage, and requiring a re-arrangement of the heavy crates to take place. It was in trying to complete such a re-arrangement that the plaintiff was injured.

By majority (2:1): Appeal dismissed against the second respondent with costs.

DECISION:

1. Appeal against first respondent dismissed with costs (3:0). 2. Appeal against second respondent, by majority, dismissed with costs (2:1).

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40037 of 2003

MEAGHER JA

IPP JA

McCOLL JA

Wednesday, 18 February 2004

HARRISON v LAU NAY NOMINEES PTY LIMITED & Ors

Judgment

1 MEAGHER JA: On Saturday 20 November 1999 Mr John Harrison was injured whilst lifting a heavy object on the back of a truck at a roadside construction camp at Sutton, near Canberra.

2 Mr Harrison lives in Melbourne, and was employed by Lau Nay Nominees Pty Ltd (t/as ABS Transport), a transport company whose business was controlled from headquarters in Melbourne, but had a Sydney depot at Chipping Norton near Liverpool. Chipping Norton was often the commencement point for his trips (to Melbourne, or where ever). So it was on the evening on 19 November, when he set out from Chipping Norton to go to Melbourne via Penrith. When he set out his semi-trailer comprised the prime mover and one trailer. That trailer had been pre-loaded for him. The cargo comprised general freight, covered with a tarpaulin.

3 He arrived at his Penrith destination at about 10.00 pm that evening. There he collected a second trailer pre-loaded with large crates of extruded aluminium. The Penrith premises were owned by Crane Enfield Metals Pty Ltd.

4 The pre-loading was, apparently, not done in a satisfactory manner. There were not enough crates to fill the trailer, with the result that there were gaps between crates. One gap was on the passenger side, and another in the middle of the trailer. Mr Harrison was of the view that to leave the gap on the passenger side was a bit dangerous, and it would have been better to have the gap on the driver's side. Mr Harrison could have corrected this problem by a rearrangement of the straps that fastened the crates. Mr Harrison informed the officer of the Penrith factory that "he wasn't happy" with the way the trailer had been loaded, predicting that "the crates would fall" and stating that he "had no way of securing them". The man replied "Bad luck". Mr Harrison said that he could have solved the problem of reworking the ropes and straps, but did not do so "probably because of fatigue".

5 By the time he left Penrith he had discovered that there was another "pick-up" job for him at Sutton, near Canberra. Exactly when he made this discovery I cannot tell. Nor does it matter. But to Sutton he repaired. First he stopped at Narellan to check the load. He satisfied himself that it had not moved and continued on. At Goulburn he stopped to have a sleep. He slept in the cabin bunk in the prime mover. When he woke up he drove to the Sutton address: it was a roadside construction camp, operated by Cooks Construction Pty Limited.

6 There was waiting for him a grader blade to be transported to Melbourne. It was already on a crane sling ready to be loaded into the second trailer. Mr Harrison noticed that two or three of the crates on the driver's side at the back of it had fallen into the packing in the gap on the passenger side of the trailer. There was an attendant present called "Bob", whom Mr Harrison had never seen before. Mr Harrison asked Bob to take the grader blade off the crane sling and lift the fallen crates back into position on the back of the trailer, using the crane. Bob replied: "It's 10 o'clock. My daughter is getting married at 2 o'clock and I haven't got time." He replied "Well I've got to move them" [sc. the crates]. "I can't load the thing in there like that." He then said to Bob "We'll get on the end of that box and we'll see if we can move it." Mr Harrison pointed to a crate weighing 164 kilograms, the weight being printed on the outside of the crate.

7 Both men took hold of the crate, Mr Harrison lifting one end from floor level to above head level and then sideways. He was unable to step to the left because there was not enough room. He had to rotate his trunk. As he did so he felt discomfort in his lower back. The crate was put back into position. The other one or two crates which had fallen were left where they were. The diesel engine was also loaded onto the truck using the crane. Mr Harrison tied the tarpaulins back over the load on the trailer and set off to drive to Melbourne.

8 Immediately after he left Sutton Mr Harrison "knew that something had gone wrong" with his back. Within a day or so, that "something" had crystallized into a really serious injury.

9 Not surprisingly, he cast about for whom to sue. Eventually he sued his employer, its Penrith customer Crane Enfield Metals Pty Limited, and the Sutton contractor Cooks Construction Pty Ltd, as first second and third defendants respectively. Naughton DCJ found for all three defendants. Mr Harrison now appeals. The respondents are the first two defendants; the third defendant, against whom one might have thought Mr Harrison had some case, has escaped an appeal.

10 Learned senior counsel for the appellant Mr Harrison, Mr Petty SC, submitted that the first respondent, Mr Harrison's employer, must be liable in negligence, apparently simply because he was an employer. The law has not yet got to this pass. The difficulty of acceding to this submission lies in trying to defile exactly what it was his employer was supposed to have done which it did not do or what it did which it should not have done. One must be able to point to some such feature before liability can exist. As Cole JA said in Pro-Krane Pty Ltd v Nobbs (Nov. 1996, BC 9605515), with the concurrence of Mahoney and Handley JJA:

"It does not follow, however, that simply because an employee is injured in the workplace there is a failure by an employer, by himself or an independent contractor, to provide a safe system of work."

11 Mr Petty attempted to surmount this difficulty in a variety of ways. His principal attempt was to argue that the employer had attempted to delegate his non-delegable duty to provide a safe system of work by treating Mr Harrison as his "expert". But this is to play with words. Mr Harrison gave evidence that he had from the age of 16 years worked either on or with trucks and had secured a truck driver's licence by the age of 18. He said he had extensive experience in the loading and unloading of trucks and in the driving and transportation of fully loaded vehicles; and that it was because of his skill and experience that he sought and obtained employment with the first respondent. In these circumstances, there was no "delegation" of anything by his employer to him, but many a sensible recognition by his employer of his expertise. The situation in this case has nothing in common with the situation in McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311, when his Honours Mason, Wilson, Brennan and Dawson JJ said: "It is not an acceptable answer to assert that an employee has no control over an employee's negligence or inadvertence."

12 As Mr Little SC, learned senior counsel for the first respondent, said: "This is not a case where it can be suggested that a safety officer travel to every site before the truck driver gets there to see that the loads are safe to pick up."

13 Again, there was a submission about Mr Harrison's use of a telephone. If one dispenses with a good deal of verbal confusion, what the evidence amounts to is clear enough: If Mr Harrison did not want to pick up a load, for any reason which seemed good to him, he could ring his employer's head office and say so; if he did that, his employer would abide by his decision, despite any disappointment it might feel. That seems exactly what one would expect of any two rational beings. But there is no way one can torture that evidence into a statement that the employer created such an atmosphere of terror that Mr Harrison was frightened to disappoint them and was thereby driven to undertake tasks which his prudence suggested should be refused.

14 Finally, there was a submission, which I must say can hardly be taken seriously, that his employer should have given him warnings and lectures. Pray, one might ask, to what effect? Not to lift loads which are too heavy to lift?

15 I do not think the first beginnings of a case of negligence are made out against the first respondent.

16 As to the second respondent, I think things are different. It stacked the second trailer carelessly. It certainly did not know the plaintiff was going on to Sutton. It had no idea of what fate befell the plaintiff at that location. But a reasonable person in the second respondent's situation must have known that negligently packed crates have a tendency to collapse, and that once there is a collapse a re-arrangement must take place. It was in trying to negotiate such a re-arrangement that the plaintiff was injured.

17 In my view, therefore, the following orders should be made:

i. Appeal allowed as to part;

ii. Set aside the trial judge's verdict and order in favour of the second defendant/respondent;

iii. Dismiss appeal against first defendant/respondent with costs;

iv. Enter verdict in favour of plaintiff against second defendant;

v. Order a retrial of plaintiff's action against second defendant, limited to quantum of damages;

vi. Order second defendant to pay plaintiff's costs of appeal

vii. Second respondent's costs of trial to abide result of rehearing;

viii. Second respondent to have a certificate under the Suitors' Fund Act.

18 IPP JA: I agree with Meagher JA for the reasons that he has given that the appellant's appeal against the first respondent should be dismissed. I do not agree, however, that the appeal against the second respondent should succeed and I set out my reasons for this conclusion below.

19 I accept that the second respondent stacked the second trailer carelessly. But it does not follow that this constituted a breach of duty on the part of the second respondent that caused the appellant to suffer damage.

20 The appellant agreed that it was his own responsibility to ensure that the load was properly positioned and properly secured. He was well aware of the defects with the stacking but other than complaining about this to the second respondent did nothing further.

21 The appellant agreed that there was an alternative method of securing the crates which he could have alone implemented and which "could have" worked. When asked why he had not secured the crates in accordance with this method the appellant answered "probably because of fatigue".

22 There was no evidence to suggest that the second respondent should have known or foreseen that the appellant might not ensure, personally, the proper positioning and securing of the load. The case was not conducted on this basis.

23 The next relevant matter concerns the fact that the second respondent had arranged with the first respondent that the crates stacked by it (that is, the second respondent) would be delivered to Melbourne. The second respondent did not know that there was any prospect of the appellant taking on further cargo en route to Melbourne. The second respondent could not have foreseen this possibility.

24 The second respondent's lack of knowledge about any possible extra load assumes importance when seen in the context of the trial judge's finding that the defective loading of the crates by the second respondent presented no danger to the completion of the journey to Melbourne. The danger only arose when the appellant made the detour to Sutton and there attempted to reposition the crates so that he could take on board the grader blade and diesel engine.

25 The second respondent could not have foreseen that the appellant would go elsewhere to accept an additional load (which would mean that the crates would have to be moved) and that its own stacking of the crates (which did not otherwise constitute a danger) would thereby be converted into a potential source of harm to the appellant. This means that the scope of whatever duty of care was owed by the second respondent to the appellant did not extend to taking care to prevent the appellant from suffering harm to which the taking on of an additional load contributed.

26 The absence of the element of foreseeability also has serious implications for the appellant's case on causation. There are, in addition, other matters that militate against a finding that a breach of any duty of care that the second respondent might have owed the appellant caused him harm.

27 The appellant was a man with many years of experience in transporting heavy goods. He knew that the crate that he attempted to lift was very heavy. It weighed 164 kilograms and this weight was printed on the outside. It must have been obvious to him that any attempt on his part to lift the crate manually was fraught with risk. The trial judge rightly found that it was foolhardy of the appellant to try to lift it.

28 The trial judge found that the second respondent could not have foreseen that the appellant would act with such extreme disregard for his own safety. In my view this finding cannot be challenged on the evidence.

29 It was not essential for the appellant to accept the load of the grader blade and diesel engine. In any event, he could have made appropriate arrangements with his employer, the first respondent, to move the crate by mechanical means.

30 Finally, in regard to this issue, the detour to Sutton, undertaken by the appellant, and his acceptance of the extra load, would not have caused any difficulty but for the fact that the daughter of the man "Bob" was getting married that day and this meant that the crane that was normally available to move loads such as the crate could not be operated.

31 The trial judge said:

"If one considers the plaintiff's case against the second defendant as depending on causation rather than breach of duty of care the result is the same. On analysis relating to duty of care I find that there was no breach of duty of care owed by the second defendant to the plaintiff. I have found that the harm which occurred was not foreseeable by the second defendant. On analysis relating to causation I find that the manner in which the crates were initially loaded by, or on behalf of, the second defendant was not a material cause of the plaintiff's injury. The poor initial loading of the crates lacked sufficient nexus with the plaintiff's injury, or was too remote, to render the second defendant liable for it."

In my view the trial judge was correct in these views.

32 I would dismiss the appeal against the second respondent with costs.

33 McCOLL JA: I agree with Ipp JA.

*****

LAST UPDATED: 18/02/2004