SIMSMETAL LTD v GODDEN [1988] NSWCA 135

SIMSMETAL LTD v GODDEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and CLARKE JJA 15 March 1988, 16 March 1988

[1988] NSWCA 135

Negligence — appeal from Common Law Division — whether evidence of negligence to go to jury — no question of principle. ORDER Appeal dismissed with costs.

Samuels JA On 19 December 1980 the first respondent was driving a forklift truck in the course of his employment with the second respondent, which was a supplier of gas cylinders for industrial purposes. The first respondent was instructed to unload from a tip truck four packs of cylinders, each pack mounted on a pallet and of significant size and weight.

The system of unloading established by the second respondent entailed, first of all, the removal by the forklift of the two packs at the rear of the truck's tray. The tray had fixed sides so that access could be got only from the rear after dropping the gate. The remaining packs were then removed by the truck driver tipping the tray and thus causing the packs to slide down the tray onto the tines of the forklift which had been extended over the rearmost floor of the tray.

The accident happened because when the truck driver first tipped the tray the packs did not budge. So he increased the angle and the packs came away with a rush, slid rapidly down the tray and onto the tines, damaging the forklift and injuring the first respondent. He sued the appellant and the second respondent and a further defendant, which was dismissed from the proceedings and which requires no further notice.

The first respondent's case against the appellant was that the appellant owned the truck and employed the driver whose negligence, presumably in exploiting too vigorously the tipping propensities of his equipment, had contributed to the injuries.

Against the second respondent, his employer, the plaintiff (as I will now call him) alleged an unsafe system of work, the particulars of which I need not examine or describe. Each defendant cross-claimed against the other seeking contribution or indemnity pursuant to s5 of the Law Reform Miscellaneous Provisions Act 1946. The plaintiff succeeded against both defendants before Campbell J and a jury, recovering substantial damages which the jury apportioned equally.