Havas v. Standard Knitting Mills Pty. Limited [2001] NSWCA 295

Reported Decision : 52 NSWLR 293

New South Wales Court of Appeal

CITATION : Havas v. Standard Knitting Mills Pty. Limited [2001] NSWCA 295 FILE NUMBER(S) : CA 40534/00 HEARING DATE(S) : 29 August 2001 JUDGMENT DATE : 7 September 2001

PARTIES : Ernie Havas - appellant Standard Knitting Mills Pty. Limited - respondent JUDGMENT OF : Stein JA at 1; Heydon JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 4043/98 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

COUNSEL : Mr. L. King SC with Mr. P. McGuire for appellant Mr. D. Hooke with Miss E. Beilby for respondent SOLICITORS : Carroll & O'Dea, Sydney for appellant Curwood & Partners, Sydney for respondent CATCHWORDS : PERSONAL PROPERTY - Possession - Immediate right to possession - Entitlement thereto - Whether in owner or bailee or both - TORTS - Negligence - Motor accident - Plaintiff's employer in possession of vehicle - Whether "owner" within meaning of Motor Accidents Act 1988. D. LEGISLATION CITED : Motor Accidents Act 1908 ss.3, 59 Genders v. Ajax Insurance Co. Ltd. (1950) 81 CLR 470 CASES CITED: Nominal Defendant v. Morgan Cars Pty. Ltd. (1974) 131 CLR 22 Central London Property Trust Ltd. v. High Trees House Ltd. [1947] KB 130 DECISION : See par.28 of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40534/00 DC 4043/98 STEIN JA HEYDON JA HODGSON JA

Friday 7th September 2001 HAVAS V. STANDARD KNITTING MILLS PTY. LIMITED

Judgment 1 STEIN JA: I agree with the orders proposed by Hodgson JA. I also agree with Heydon JA, whose draft judgment I have had the benefit of reading. 2 HEYDON JA: I agree with the orders proposed by Hodgson J and the reasons he gives for them, save that I would base the entitlement of Universal to possession only on giving notice not on estoppel, but on an express contractual term inferred from the circumstances or on an implied contractual term. In the pleadings the respondent raised the ownership point by way of defence, and the appellant did not file a reply. In consequence, neither a contractual term nor an estoppel was pleaded. In final address the appellant sufficiently flagged an argument of the type accepted by Hodgson JA, and the respondent did not either at trial or on appeal say that the argument was not open because of the state of the pleadings. That argument is easily supported by analysing the arrangements between Universal and the respondent as contractual. It is easy to infer from the circumstances an express term providing for notice, or to imply into the contract a term providing for notice in order to give the contract business efficacy. It is less easy to find an estoppel and the appellant below did not argue in terms that there was any estoppel. 3 HODGSON JA: On 30 June 2000, Garling DCJ made orders disposing of a claim brought by the appellant against his employer the respondent, in respect of personal injuries arising out of an accident at work. On that day, the primary judge gave a verdict for the respondent, and ordered the appellant to pay the respondent's costs. We are now dealing with an appeal brought from that judgment. 4 The accident in question occurred on 14 June 1995. The appellant was driving a forklift truck at the respondent's premises, and using it to assist in the lifting of a very heavy knitting machine onto a truck. The forklift moved on to rough ground, the load tilted, and the knitting machine hit the appellant and injured him. 5 The primary judge found that the appellant's injury was caused by the negligence of the respondent, namely a breach of its duty of care owed to the appellant as its employee, broadly the duty to provide a safe system of work and safe premises for work. The primary judge also found the appellant guilty of contributory negligence, justifying a 15 per cent reduction in the amount of any damages. 6 It is common ground that the forklift was a motor vehicle within the meaning of the Motor Accidents Act 1988. The appellant claimed that the respondent was the owner, within the meaning of that Act, of the motor vehicle, and that accordingly the damages sought by the appellant were damages for "injury to a person caused by the fault of the owner … of a motor vehicle in the use or operation of the vehicle" within s.59(1) of the Motor Accidents Act. This would mean that the damages sought by the appellant were "damages to which Pt.6 of the Motor Accidents Act 1988 applies" within s.151E(1) of the Workers Compensation Act 1987. This in turn would mean that the appellant was not precluded by s.151A of the Workers Compensation Act from pursuing his claim for common law damages, notwithstanding that he had elected to receive permanent loss compensation for his injury under ss.66 and 67 of the Workers Compensation Act. Otherwise, he would be. 7 The only aspect of this contention contested by the respondent was the appellant's claim that the respondent was the owner of the motor vehicle. The motor vehicle was in fact registered in the name of Universal Dye Works Pty. Limited (Universal), another company in the same group of companies as the respondent, although the vehicle was used and garaged by the respondent. The appellant's claim of ownership required consideration of definitions contained in the Motor Accidents Act. Section 3(1) of that Act, as at 14th June 1995 and today, defines "owner, in relation to a motor vehicle" to mean a person who is the owner of the vehicle by virtue of ss.(3) to (5) of that section. Those subsections were as at 14 June 1995, but not today, in the following form: (3) For the purposes of this Act: (a) in the case of a motor vehicle which is registered, the owner is: (i) the person in whose name the vehicle is registered, unless the person has sold or ceased to have possession of the vehicle; or (ii) if the person in whose name the vehicle is registered has sold or ceased to have possession of the vehicle – any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle; or (b) in the case of a motor vehicle which is unregistered, the owner is any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle; or (c) in the case of a motor vehicle to which a trader's plate is fixed, the owner is the trader to whom the trader's plate is issued.