VUKOVIC v PERRYMAN [1997] NSWCA 332

VUKOVIC v PERRYMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA, CLARKE, and GROVE AJJA 14 April 1997, 14 April 1997

[1997] NSWCA 332

Negligence — trenching works near railway — workman struck by backhoe jib — attempting to clear imminent danger by standing on dumpster load contrary to standing order — no other practicable course — finding of contributory negligence quashed — damages — manifest overestimate of value of residual capacity adjusted

Grove J There is before the court a cross appeal brought by Peter Vukovic who had been the plaintiff in an action in the District Court in which Philip Perryman and the State Rail Authority of New South Wales were defendants. They are the respondents to the cross appeal. It will be convenient for present purposes to continue to refer to the parties as plaintiff and defendant. The relevant proceedings were the subject of a judgment given by Garling DCJ on 27 October 1994. The cross appeal is expressed in multiple grounds but essentially two issues are raised and the parties have argued the matters before this court in that fashion and I will adopt it.

The broad facts are that the plaintiff (who was employed by the second defendant) was working in certain operations excavating a trench between railway lines in the inner western suburbs of Sydney. He was the driver of a dump truck which was obviously available to be used to remove extracted material and the defendant Mr Perryman was the operator of a front end loader which was fitted with a backhoe implement. At the relevant time it was this implement that was being used and the loader had been rendered immobile for that purpose. As the backhoe extracted material forming the trench the extract was loaded into the dump truck being operated by the plaintiff.

It was the plaintiffs case that for purposes to which I will turn he was standing on the load in the dump truck when he was struck by the bucket on the moving jib of the backhoe. At the time there had been signalled the approach of a train on an adjacent railway line. It can be observed that at trial the central issue litigated between the parties was whether the plaintiff was struck by the moving bucket at all or whether in some fashion he simply fell from the back of the loader. This would involve a descent to the ground of something in the order of two metres or six feet.