AUSTRALIAN SOCCER POOLS PTY LTD v GAIR [1989] NSWCA 14

AUSTRALIAN SOCCER POOLS PTY LTD v GAIR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HOPE (1), CLARKE (2) AND MEAGHER (3) JJA

9 March 1989, 27 June 1989

[1989] NSWCA 14

NEGLIGENCE — DUTY — BREACH OF DUTY — PROXIMITY

The appellant employed the father of the respondent upon terms, inter alia, that it would provide him with a motor vehicle for use by himself and his family and that it would indemnify the respondent's father and any authorised user of the vehicle from having to pay the cost of repairs resulting from an accident. The respondent was lent the vehicle by his father and while he was driving it he lost control and the vehicle rolled over and was damaged. It was accepted that the respondent had driven the vehicle carelessly. The appellant sued the respondent and his father claiming the cost of repairing the damage to the vehicle. The trial judge found against the appellant which appealed only against the verdict in favour of the respondent.

Respondent could not rely on the contractual indemnity available to his father the relationship between the respondent, as an authorised user of the vehicle, and the appellant which had promised his father to indemnify himself and any authorised user against the cost of repairing the damage caused affected the content of the duty of care which the respondent owed to the appellant and that no breach of that duty had been shown in this case.

ORDERS

The appeal is dismissed with costs.

Hope JA I agree with Clarke JA.

Clarke JA On 29 May 1979 the appellant employed Robin Gair as its Assistant Sales Manager. The terms of his employment provided for the payment of a wage and a small incentive bonus. In addition he was informed that his telephone accounts would be paid and that he would be provided with "a fully subsidised company car'.

In fact he was supplied with a company car which was used both by himself and members of his family.