BURN PHILIP TRUSTEE CO LTD v CLARKE [1996] NSWCA 79

BURN PHILIP TRUSTEE CO LTD v CLARKE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, COLE JJA and ABADEE AJA 19 September 1996, 6 December 1996

[1996] NSWCA 79

Master and servant — Vicarious liability of employer for casual act of negligence of fellow employee — Employee injured whilst assisting other employee to lift heavy weight — Contributory negligence

Priestley JA This is a difficult case because it lies near the rather vague line dividing the situations in which a defendant will and will not be held liable for negligence. The difficulties in deciding, in cases such as the present, whether or not a plaintiff should succeed are well illustrated in the reasons of Cole JA, who thinks the plaintiff should not have succeeded at first instance, and Abadee AJA who thinks that Grove J was correct in entering judgment for the plaintiff.

In Abadee AJA's reasons the argument put by the plaintiff in defence of Grove J's decision and an analysis of the cases which need to be applied in considering that argument, are fully set out. My assessment is that the weight of that argument and analysis is somewhat greater than that of the opposing view. I therefore agree with Abadee AJA in thinking that the appeal should be dismissed.

T also agree with Abadee AJA, for the reasons he gives, that the cross-appeal should be dismissed.

In my opinion the orders proposed by Abadee AJA should be made.

Cole JA The respondent, Peter Clarke, was the manager of the appellant's Parramatta branch, and was aged 40 when on 12 April 1985 he injured his back whilst assisting two fellow employees to move a credenza, which was a cupboard approximately four feet by one and a half feet by two and a half feet. The circumstances in which the injury occurred were that Mr Clarke had been asked to attend a promotional show at the Centrepoint Complex in Sydney on behalf of his employer. At the show there was a mock up office. He went to Centrepoint at about 9.30a.m. where he found two other employees, Miss Cooper and Miss Murdoch. Both were less than 30 years old but Miss Cooper was the marketing manager for the company. Grove J held that she was not in a superior position as an employee to Mr clarke, they both being managers of different aspects of the appellant's business. Miss Cooper wished to rearrange the credenza in the mock up office and said: "Oh, I would like to move this credenza to give the office a better looking appearance. If two of us girls get to one end and push, would you be able to lift the other end so we can just move it four or five feet or so over there". Mr Clarke acquiesced, lifted one end off the floor a couple of inches and the two ladies pushed it the requisite four to five feet. Mr Clarke felt twinges in his back as he put down the credenza.