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. The appellant takes two points. First, that there was no evidence capable of establishing that the appellant was liable for the fault of the tip truck driver, there being no material capable of proving directly, or from which it was open to be inferred, that the appellant owned the truck. Secondly, the appellant complains that in the circumstances the apportionment was against the evidence or unreasonable and should be set aside. It appears that the plaintiff did not note or know the registered number of the tip truck. Accordingly, there is no direct proof of the identity of the registered owner. I interpolate that the appellant, Simsmetal Ltd, was known as Simsmetal 2 UNREPORTED JUDGMENTS Pty Ltd at the time of the accident and carried on business as a scrap metal dealer in association with other companies identified by variations upon the name Simsmetal. In my view, there was evidence capable of proving the following facts: 1. By contract dated 24 January 1979, and replacing a previous engagement, the second respondent agreed to supply the appellant with industrial gases for a period of three years with an option for extension. The contract contemplated the purchase of gases in "crates or packs" and was current at the time of the accident. 2. The tip truck involved in the accident was the only such truck to come to the second respondent's yard and did so regularly, driven by the same driver who was the driver on the date in question. 3. That on occasions prior to the accident the second respondent had loaded this truck with cylinders on crates or pallets known as CRA 12s and that the second respondent had sold to the appellant oxygen in CRA 12s for the use of the appellant's demolition division. 4. That on two occasions close to the time of the accident delivery dockets relating to cylinders being loaded onto or unloaded from this truck bore as the customer's name the word Simsmetal. 5. That it appears from a schedule produced in answer to the plaintiff's subpoena that the appellant owned two tipper trucks, both stationed at Mascot, which on the face of it were capable of satisfying the meager description of the subject vehicle which the evidence revealed. From all of this it was open to the jury to infer that the cylinders on the day in question were being unloaded pursuant to a commercial transaction, probably under the agreement referred to, between the appellant and the second respondent. But, the appellant submits, there is no evidence capable of supporting the inference that the appellant owned the truck, it being conceded by the appellant that if the proof went that far it would also establish the appellant's vicarious liability for the driver's fault. In my opinion, the proof does extend to that point. There is evidence that the appellant did own two tip trucks, either of which could have been the one in question. the truck involved had visited the second respondent's premises regularly for a significant period with the same driver. It was a "rough" truck. That is, not young and in poor cosmetic shape. The business done under the contract involved a reasonably large volume of transactions. The competing conclusions, to use a neutral word, which the appellant submits are no more than mere hypotheses of equal weight are that the appellant owned the truck, or that the truck was owned by an independent contractor who also employed the driver but hired both truck and driver over an extended period to the appellant. In my judgment, it was open to the jury to find that, according to the course of common experience, the more probable inference was that the appellant owned the truck and employed the driver. I refer to the test propounded in Bradshaw v McEwans Pty Ltd and cited in Holloway v McFeeters (1956) 94 CLR 470 at 480-1. The first argument therefore fails. Ican dispose of the second point quite shortly. The appellant submits that there was such a gross disproportion between the defendants' responsibility for the damage that an equal allocation cannot represent a just and equitable contribution by the appellant. The substantial cause of the accident, it is said, was the second respondent's unsafe system which imposed upon the driver the very response which led to the accident. URJ SIMSMETAL LTD v GODDEN (Clarke JA) 3 The jury, however, evidently thought differently. Pennington v Norris (1956) 96 CLR 10 involved a claim of contributory negligence, but the principle there referred to also applies here. It should therefore be a rare case in which an apportionment made at the trial can be successfully challenged on appeal. This is not such a case and the appeal therefore fails. I would dismiss the appeal with costs. Kirby P I agree. Clarke JA I also agree. KIRBY P: The order of the Court accordingly is appeal dismissed with costs.