Andrews v Andrews & Bresabyss Pty Ltd t/as BP Five Dock [2001] NSWCA 62

Reported Decision : (2001) 33 MVR 109

New South Wales Court of Appeal

CITATION : Andrews v Andrews & Bresabyss Pty Ltd t/as BP Five Dock [2001] NSWCA 62 revised - 03/05/2007 FILE NUMBER(S) : CA 40867/99 HEARING DATE(S) : 14/03/01 JUDGMENT DATE : 26 March 2001

Anthony Andrews (Appellant) PARTIES : Andrew Andrews (First Respondent) Bresabyss Pty Ltd t/as BP Five Dock (Second Respondent) JUDGMENT OF : Priestley JA at 1; Sheller JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 5978/98 FILE NUMBER(S) : LOWER COURT Graham DCJ JUDICIAL OFFICER :

M.J. Neil QC / K. Pierce (Appellant) COUNSEL : G.M. Watson (First Respondent) J.D. Hislop QC / C.E. Adamson (Second Respondent) SOLICITORS : Bruce & Stewart Insurance Lawyers (Appellant) Constantine G Pavlis & Co (Respondent) CATCHWORDS : Negligence - motor vehicle incorrectly parked at place of employment - safe system of work - employee injured responsible for system of work - contributory negligence - contribution between employer and fellow employee who parked vehicle - ND LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 Motor Accidents Act 1988 CASES CITED: Kulczyczki v Metalex Pty Ltd (1995) 2 VR 377 DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40867/99 DC 5978/98 PRIESTLEY JA SHELLER JA FITZGERALD JA

MONDAY 26 MARCH 2001

ANDREWS v ANDREWS & Ors

JUDGMENT

1 PRIESTLEY JA: I agree with Fitzgerald JA. 2 SHELLER JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: On 19 February 1996, the first respondent (the "father") was injured when a motor vehicle which he owned rolled down a "very slight" incline in the forecourt area of the BP Five Dock Service Station and pinned him against a stanchion. The father was the active director of the second respondent (the "company"), which owned and operated the Service Station. The motor vehicle had been parked by the appellant (the "son"). The father and the son both worked at the service station and had done so for many years, the father for almost 50 years and the son for 18 years or more. 4 The son's practice, of which the father was aware, was to engage the parking gear but not to use the handbrake when he parked a vehicle on the forecourt. Both the father and the son considered that that course was safe. The son said that his practice was in accordance with what he had been taught when he learnt his trade. The father's evidence was that, after the engine is turned off and the parking gear engaged, there is no risk that even an old vehicle parked on a slope will "slip out of gear" and roll down the slope when the handbrake is not used. 5 However, it was accepted that, when the handbrake is not used, a vehicle parked on a slope can roll down the slope if the if the parking gear is not engaged properly. That is what led to the father's injury. When the son parked the vehicle, he negligently failed to engage the parking gear properly. There is nothing to suggest that that had occurred previously. 6 The father sued the son, claiming damages for negligence. The son pleaded contributory negligence against the father. The son also cross-claimed against the company on the basis that he was entitled to an indemnity or contribution under Part 3 of the Law Reform (Miscellaneous Provisions) Act 1946 (the "Contribution Act"). The cross-claim was founded solely on the proposition that the company had breached its duty to maintain a safe system of work for the benefit of its employees. 7 On 28 October 1999, judgment was given in favour of the father against the son for damages and interest totalling $198,750.50, including an award of $63,000 for non-economic loss under s79A of the Motor Accidents Act 1988 (the "MAA"). The trial judge found that the father was not contributorily negligent. The son's cross-claim against the company was dismissed. 8 The son has appealed. The appeal raises three issues, namely: