GOVERNMENT INSURANCE OFFICE v MARTINELLI AND ANOR [1995] NSWCA 181

GOVERNMENT INSURANCE OFFICE v MARTINELLI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and POWELL JJA 6 April 1995 [1995] NSWCA 181

Evidence — Agency — Whether evidence sufficient to establish Negligence — Vicarious liability — Whether evidence sufficient to establish

Powell JA On 28 July 1986, the First Respondent, Mr Martinelli, was injured when preparing to unload a truck on a property at Glen Davis. As a result of the injuries which he sustained, Mr Martinelli was disabled from work for a time and suffered continuing disabilities which, so he claimed, severely affected his capacity for work.

At some time which is not revealed by the material in the Appeal Book, Mr Martinelli seems to have commenced against his employer, the Second Respondent, Reid Excavations Pty Ltd ("Excavations") proceedings in the Workers Compensation Commission, or the Compensation Court, as a result of which proceedings he was later to receive payments totalling some $ 15,000, or thereabouts, by way of compensation pursuant to the provisions of the Workers Compensation Act 1926.

At some time in 1987, which is not revealed by the material in the Appeal Book, but which may have been in April, Mr Martinelli sued Excavations in these proceedings for damages for the negligence on its part which he claimed had been the cause of his injury. In his particulars of negligence, Mr Martinelli asserted a variety of actions on the part of Excavations associated with the loading of the truck and its alleged failure to provide to him proper instruction as to the course to be followed when the truck was to be unloaded.

It would appear that these proceedings may have been listed for hearing, in the first instance, in May 1991, in the District Court at Parramatta. It would seem that, at about that time, or, perhaps a little earlier, it was ascertained that the truck which Mr Martinelli had been about to unload was owned, not by Excavations, but by another company A and K Reid Rockbreakers Pty Ltd ("Rockbreakers"). It was no doubt as a result of that information being ascertained that, at sometime thereafter, the hearing date was vacated and Mr Martinelli caused to be filed an Amended Statement of Claim in which he joined the Appellant, the former third party insurer of the truck, as an additional party- Defendant.