White v Malco [1999] NSWSC 1055

New South Wales Supreme Court CITATION : White v Malco [1999] NSWSC 1055 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 20152/98 HEARING DATE(S) : 16/11/98-20/11/98,24/11/98-26/11/98, 31/05/99-4/06/99 JUDGMENT DATE : 29 October 1999

PARTIES : Bruce Charles White - Plaintiff Malco Engineering Pty Ltd - Defendant JUDGMENT OF : James J

B Toomey QC/Mr Dooley - Plaintiff MJ Neil QC/I Mescher - 1st Defendant COUNSEL : G Swinton - 2nd Defendant D Nock SC - cross-defendant C Branson QC/D Conti - cross-defendant I Faulkner - cross-defendant Adams Leyland - Plaintiff Cutler Hughes & Harris SOLICITORS : Leitch Hasson & Dent Ebsworth & Ebsworth Harris Leberman & Boyd Henry Davis York CATCHWORDS : Negligence - personal injuries - employer's duties - hire of goods - reasonably fit for purpose DECISION : Preliminary judgment

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Friday 29 October 1999

FILE NO. - 20152/98 - White v Malco Engineering Pty Limited

JUDGMENT

HIS HONOUR: 1 HIS HONOUR: In these proceedings the plaintiff, Bruce Charles White, sued the first defendant Malco Engineering Pty Limited ("Malco") and the second defendant Skilled Engineering Pty Limited ("Skilled") for damages for personal injuries allegedly suffered in an accident occurring on Saturday 4 November 1995 at the premises of Australian Newsprint Mills ("ANM") at Albury. At the time of the accident the plaintiff was employed by Skilled but was working in the operations of Malco, to whom Skilled had hired his labour. The plaintiff was working at the premises of ANM with two employees of Malco, named Peter Dyson ("Mr Dyson") and Leslie Onody ("Mr Onody"). When he was injured the plaintiff was engaged in attempting to jump start an item of equipment, which was variously referred to in the evidence as an elevated work platform, a boom lift or a cherry picker and which, for the sake of convenience, I will refer to as "the boom lift", by using the battery of a Manitou forklift ("the forklift"), which had been positioned alongside the boom lift. During this operation the forklift started moving forwards, trapped the plaintiff's right foot thereby throwing him to the ground and then ran over part of the plaintiff's right leg, injuring the leg. 2 The plaintiff's case against Malco, succinctly stated, was that Malco owed the plaintiff duties analogous to those owed by an employer to an employee and had failed to take reasonable care to provide safe plant and equipment and a safe system of work (in particular, it was alleged that the forklift was defective) and that by reason of these breaches of duty the plaintiff had been injured, or, alternatively, Malco was vicariously liable for casual acts of negligence by its employee Mr Onody, by reason of which the plaintiff had been injured. The plaintiff's case against Skilled, succinctly stated, was that Skilled, as the actual employer of the plaintiff, was subject to the duties of an employer, which were non-delegable, that Skilled itself had failed to discharge those duties and Skilled was liable for failures by Malco to take reasonable care to provide safe plant and equipment and a safe system of work. 3 No fewer than nine cross-claims were brought in the proceedings and these cross-claims had the effect of considerably prolonging the hearing. Many of these cross-claims were based on the allegedly defective condition of the forklift or on an alleged statutory liability of a cross-defendant as being the "owner" of the forklift. In order to understand the cross-claims, it is necessary first to record a number of facts about the forklift, none of which were in dispute at the hearing. 4 Between 13 May 1993 and 31 January 1996 the forklift was registered as a motor vehicle in the State of Victoria pursuant to Victorian legislation, the registered owner being "Caddy's Timber & Hardware". It was common ground at the hearing that between those dates the registered owner of the forklift was in fact a company Syd-Fam Pty Limited ("Syd-Fam"), which carried on business at Yarrawonga in the State of Victoria under the name of Caddy's Timber & Building Supplies. The forklift had been acquired by Syd-Fam through a company Lift Truck Services Pty Limited ("Lift Truck Services"), which carried on in Albury the business of selling and servicing forklifts. An associated company Liftqip Pty Limited ("Liftqip") carried on the business of hiring out forklifts, using the same premises as Lift Truck Services. Forklifts hired out by Liftqip were serviced and maintained by Lift Truck Services. During the period that Syd-Fam owned the forklift, the forklift was serviced on a number of occasions by Lift Truck Services. 5 In August 1995 the forklift was brought back to the premises of Lift Truck Services in Albury, where it remained until 31 October. 6 In late October 1995 Malco required a forklift for use in carrying out the work it was performing at the ANM Mill in Albury. Mr Moore, a supply manager employed by Malco, telephoned Mr Hudson of "Wreckair", a company carrying on business in Wodonga in Victoria and arranged for the hire of a forklift by Wreckair to Malco. The company formerly trading as "Wreckair" is now named Prevwreck Pty Limited and it will be convenient to refer to it as "Prevwreck". 7 A purchase order dated 26 October 1995 was sent from Malco to Prevwreck for the hire of a five tonne forklift "on site Australian Newsprint Mills… from midday Monday 30/10/95". 8 Prevwreck did not have a forklift of the size ordered by Malco in its depot and Prevwreck arranged for a forklift to be hired from Liftqip. 9 On 31 October 1995 an employee of Prevwreck, Jason Harders, picked up the forklift from the premises of Lift Truck Services at Laverton and delivered the forklift to the premises of ANM. 10 The hire of the forklift by Malco continued to 9 November 1995. On 9 November 1995 Prevwreck gave Malco a "returned from hire" document. Liftqip sent an invoice to Prevwreck for the rental for the hire of the forklift and associated charges and Prevwreck sent an invoice to Malco for the rental for the hire of the forklift and associated charges. Prevwreck charged Malco a higher rate of rental than Liftqip charged Prevwreck. 11 As I have already indicated, no fewer than nine cross-claims were brought in the proceedings. Some of these cross-claims were brought against more than one cross-defendant and contained more than one cause of action. I will now list the cross-claims, not in accordance with their nominal order, but in what I consider to be a more functional and comprehensible order. 12 1. Cross-claim by Malco against Skilled (which was nominally the third cross-claim). 13 2. Cross-claim by Skilled against Malco (part of the fifth cross-claim). 14 3. Cross-claim by Malco against Prevwreck (the seventh cross-claim). 15 4. Cross-claim by Malco against Liftqip (the sixth cross-claim). 16 5. Cross-claim by Malco against Lift Truck Services (the first cross-claim). 17 6. Cross-claim by Skilled against Lift Truck Services and Liftqip (part of the fifth cross-claim). 18 7. Cross-claim by Malco against Syd-Fam (the second cross-claim). 19 8. Cross claim by Skilled against Syd-Fam (part of the fifth cross-claim). 20 9. Cross-claim by Prevwreck against Lift Truck Services and Liftqip (the eighth cross-claim). 21 10. Cross-claim by Syd-Fam against Skilled (the fourth cross-claim). 22 11. Cross-claim by Syd-Fam against each of Lift Truck Services, Liftqip and Prevwreck (the ninth cross-claim) 23 No cross-claim was brought by either Lift Truck Services or Liftqip against anyone. 24 It became apparent during the course of the hearing that it would be impracticable for me to attempt to prepare a single judgment in which I dealt definitively with all of the many issues which have arisen in these proceedings and it was accepted by the parties that I would first deliver a preliminary judgment in which I dealt with some only of the issues. The present judgment is such a preliminary judgment.