BATES v ROSENBERG; ROSENBERG v SOGAL [1988] NSWCA 14

BATES v ROSENBERG; ROSENBERG v SOGAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MCHUGH and CLARKE JJA 21 September 1988, 21 September 1988 [1988] NSWCA 14

MASTER AND SERVANT — negligence — vicarious liability — safer system of work — employee injured in the course of priming the carburettor of a car in a manner in which instructed to carry out the task by the employer's foreman — system of performing task dangerous and employer claimed to be liable notwithstanding that plaintiff was the senior employee engaged in the operation and the employee himself was not a qualified mechanic — fellow employee pumps accelerator before receiving appropriate instruction. Held — employer liable for failure to maintain safe system of work and vicariously liable for fellow employee's negligence. Held also — that in view of the way the case was contested the owner of the car was liable for the negligence of his deemed agent.

ORDERS Both appeals should be dismissed with costs.

Clarke JA There are two appeals before the court, each brought by an unsuccessful defendant in a personal injuries action brought by Mr Laszlo Sogal. In that action his Honour Judge Moore found that both the defendants, who are the present appellants to whose names I will refer in future for convenience, were liable to the plaintiff and awarded damages in the sum of $40,500.

Both appellants have raised the point that his Honour was in error in concluding that the plaintiff Sogal had established negligence. It is therefore necessary to consider firstly the factual material upon which his Honour based his findings in order to determine whether there was any error in the findings of negligence.

Sogal was a motor mechanic at the time of the accident in the employ of Rosenberg. He had, upon leaving school, entered Rosenberg's employ as an apprentice under service to a man named Giaquanto. Giaquanto was, I infer, a foreman mechanic then in the employ of Rosenberg. It is of some note that the only experience as a mechanic which Sogal had had was under Giaquanto and during his continuing employment with Rosenberg following the completion of his apprenticeship. During the course of that apprenticeship he was instructed at all times by Giaquanto because Rosenberg himself was not a trained mechanic.