WILSON BROS TIMBER CARTAGE PTY LTD v LLOYD [1995] NSWCA 518

WILSON BROS TIMBER CARTAGE PTY LTD vy LLOYD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and COLE JJA 14 September 1995, 29 September 1995 [1995] NSWCA 518

NEGLIGENCE — LIABILITY — WHETHER SAFE SYSTEM OF WORK PROVIDED WHETHER RISK WAS FORESEEABLE DAMAGES — DISCOUNT FOR CHANCE OF REMARRIAGE

FACTS

The deceased was unloading telegraph poles when the load released onto him and killed him. Simpson J found in favour of the deceased's wife on negligence and directed entry of judgment for $418,650.00. The employer has challenged both the finding of liability and the quantum of damages.

Held (per Clarke JA, Meagher and Cole JJA agreed)

The risk that a driver might walk round to the unsafe side to investigate why the load had not released is neither far fetched nor fanciful. It was also not unforeseeable. The system of work employed was an imperfect one and the releasing system malfunctioned in a high proportion of instances on which it was used.

The employer failed to meet the standards of the reasonable employer in failing to use one or both of the means available to lessen that risk.

Her Honour did not err in not making some discount for the respondent's chances of remarriage which was so highly speculative that it was inappropriate to make any further deduction.

ORDERS

Appeal dismissed with costs.

Clarke JA Graeme Aubrey Lloyd (the deceased) was employed by Wilson BrosTimber Cartage Pty Ltd (the appellant) as a truck driver in 1986. His duties required him to load timber onto the tray of his vehicle, to cart it to its destination and there to unload it. From time to time he was also required to move used, sometimes partially rotten, telegraph poles from various Sydney County Council depots to regular customers. On those occasions he was required to load the telegraph poles into a cradle secured to the tray of his vehicle, carry the poles to the customer's address and there unload them.