PRO-KRANE PTY LTD v NOBBS and ANOR [1996] NSWCA 436

PRO-KRANE PTY LTD v NOBBS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, HANDLEY and COLE JJA 15 November 1996, 15 November 1996

[1996] NSWCA 436

CAUSE of industrial accident — casual act of negligence of an independent contractor does not necessarily mean lack of safe system of work by an employer.

Cole JA Patten DCJ in a judgment delivered 3 December 1993 found that Mr Joseph Nobbs, the first respondent, who was employed by Nutri-Metics Pty Ltd, the second respondent, was injured on 23 December 1986 when his left foot was run over by a Crown Walkie Stacker fork lift truck which was being operated by Mr McGhee, who was employed by the appellant, Pro-Krane Pty Ltd. The fork lift truck was leased to Nutri-Metics. Pro-Krane Pty Ltd had been engaged by Nutri-Metics to move its operations and equipment from Castle Hill to Balmain where the accident occurred.

The trial judge accepted the plaintiffs version of the accident. His Honour was satisfied on the probabilities that Mr McGhee had moved the fork lift towards a semi-trailer with a view to assisting its unloading. He and the fork lift were stationary whilst Mr McGhee was speaking to the trailer driver. He found that Mr Nobbs called out that he would take the fork lift from Mr McGhee but had not physically sought to take control of the machine. He was satisfied that Mr McGhee "inadvertently or otherwise put the fork lift truck into operation without first ensuring that it was safe to do so". Thus the appellant, as Mr McGhee's employer, was held to have acted negligently. The damages awarded to Mr Nobbs have been paid by the appellant.

Patten DCJ rejected a submission on behalf of the appellant that Nutri-Metics, as Mr Nobbs' employer, was in breach of a non-delegable duty to provide a safe system of work in that the casual act of Mr McGhee was part of an unsafe system of work then in operation. The trial judge found that "the only breach of duty which I find to have occurred was the casual act of negligence of Mr McGhee a man experienced in the operation of fork lift trucks and for whom the second defendant is responsible".