Henderson Civil Engineering Pty Ltd v Gilbarco Australia Pty Ltd [2001] NSWCA 21

New South Wales Court of Appeal

CITATION : Henderson Civil Engineering Pty Ltd v Gilbarco Australia Pty Ltd [2001] NSWCA 21 FILE NUMBER(S) : CA 40793/99 HEARING DATE(S) : 5th February 2001 JUDGMENT DATE : 26 February 2001

PARTIES : Henderson Civil Engineering Pty Limited Gilbarco Australia Pty Limited JUDGMENT OF : Priestley JA at 1; Beazley JA at 2; Ipp AJA at 28

LOWER COURT JURISDICTION : District Court LOWER COURT 1296/98 FILE NUMBER(S) : LOWER COURT Robison DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: L King SC/M Jenkins Respondent: P M Hall QC SOLICITORS : Appellant: William K Chambers Respondent: Riley Gray-Spencer CATCHWORDS : Workers Compensation - indemnity of employer - causation - cause of accident LEGISLATION CITED : Workers Compensation Act (NSW) 1987, ss 66, 67, 151Z DECISION : Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40793/99 DC 1296/98

PRIESTLEY JA BEAZLEY JA IPP AJA

Monday, 26 February 2001

HENDERSON CIVIL ENGINEERING PTY LIMITED v GILBARCO AUSTRALIA LIMITED

JUDGMENT 1 PRIESTLEY JA: I agree with Beazley JA. 2 BEAZLEY JA: The appellant (Henderson) conducts a civil engineering and construction business, during the course of which it hires out excavation machinery, together with the services of employees who are experienced machine operators. A Mr Walker was such an employee. 3 On 22 June 1992, Henderson had hired out one of its excavators and the services of Mr Walker for the purposes of excavation work required by the respondent (Gilbarco), which at that time was installing fuel tanks on a building site known as the Westy Service Station at Wallsend. In the course of undertaking work at the site, Mr Walker was seriously injured when the excavator toppled into a hole which he had excavated. 4 Mr Walker was paid workers' compensation by Henderson, as well as lump sum compensation under ss 66 and 67 of the Workers Compensation Act 1987 (NSW) (the Act). 5 Henderson brought proceedings against Gilbarco for indemnity under s 151Z of the Act. That section provides that where a worker receives an injury and is entitled to be paid compensation under the Act in circumstances creating liability in another person, the employer is entitled to indemnity from that person: s 151Z(1)(d). In order to succeed on its claim for indemnity, therefore, Henderson had to prove that Gilbarco owed and breached a duty of care to Mr Walker. 6 Both in the way it formulated the claim in the pleadings and ran the case at trial, Henderson alleged that the ground beneath the excavating machine collapsed causing it to topple into the hole causing Mr Walker to sustain serious injuries. It alleged that Gilbarco was under a duty of care to Mr Walker to ensure the ground upon which he was required to work was stable and was negligent in failing to do so or in directing him to work upon ground that was unstable. 7 Henderson's claim failed before the trial judge. His Honour was not satisfied the accident was caused by the ground underneath the excavator collapsing. His Honour added that even if that was established as the cause of the accident, he considered that, "that of itself … [was] not capable of establishing liability as between Mr Walker and [Gilbarco]". 8 These findings are in issue on the appeal.