JONES v CASEY and ANOR [1991] NSWCA 161

JONES v CASEY and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MEAGHER JJA 7 February 1991, 27 February 1991 [1991] NSWCA 161

JOINT TORTFEASORS — contribution — contribution by employer to judgment recovered by worker — whether negligent failure of the employer to provide the worker with a safe system of work proved — whether any such failure was causally related to the worker's injuries, as sustained — whether any different system of work would have prevented injury to the worker — held: (1) The employer owed a personal duty of care to the worker which was not delegable; (2) The mere fact that the injured worker was a senior employee did not release the employer from that duty. General Cleaning Contractors Limited v Christmas [1953] AC 180, 189 applied; (3) Nevertheless, it was not shown that any of the alleged defaults of the employer was causally related to the way the worker suffered injury; (4) Insofar as a causal relation was suggested by the want of provision of a safety rail around a flour tanker, this was a matter requiring expert evidence and was not within the common knowledge of a court. In the absence of such evidence, the claim for contribution was properly rejected. NEGLIGENCE — duty of care — breach of duty — need to establish that the breach of the duty was causally related to the damage suffered — need to establish that, in the circumstances proved, the damage was preventable. PRACTICE and PROCEDURE — fair procedures — whether ground of negligence adequately pleaded and raised at trial — held: Having regard to counsel's statement that the issue was not litigated at trial and to the want of clear particularisation, it could not be raised on appeal. Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, 7 applied.

Kirby P, Samuels and Meagher JJA This appeal concerns a claim by a tortfeasor against a corporation which he alleges contributed by its negligence to the injuries of the plaintiff who recovered damages from him. Upon examination, the tortfeasor's main contention founders on a principle of procedural fairness which requires that a case on appeal should be grounded in the matters litigated at trial.