Harrison v Lau Nay Nominees P/L t/as Abs Transport [2004] NSWCA 18

New South Wales Court of Appeal

CITATION : Harrison v Lau Nay Nominees P/L t/as Abs Transport [2004] NSWCA 18 HEARING DATE(S) : 18/11/03 JUDGMENT DATE : 18 February 2004

JUDGMENT OF : Meagher JA at 1; Ipp JA at 18; McColl JA at 33 DECISION : 1. Appeal against first respondent dismissed with costs (3:0). 2. Appeal against second respondent, by majority, dismissed with costs (2:1).

CATCHWORDS : APPEAL - TORT - NEGLIGENCE - PERSONAL INJURY - COMPENSATION - Appeal against two respondents from a District Court decision (in favour of three defendants) - whether transport company employer is liable for injury to its employee arising at their customers' freight pick-up sites and loadings - whether employer, or the employer's customers, are liable for injuries arising from the truck driver employee's assumption of risk in loading truck - why the third defendant was not joined as a third respondent to the appeal. Held: Employer/first respondent not liable by virtue of an employer/employee relationship alone - by majority: (a) although the second respondent did act carelessly, it did not breach any duty of care owed to the appellant - (b) appellant acquiesced to second respondent's carelessness - appeal against both respondents dismissed with costs. CASES CITED : Pro-Krane Pty Ltd v Nobbs (Nov. 1996, BC 9605515) McLean v Tedman (1984) 155 CLR 306 at 311 John Harrison PARTIES : v Lau Nay Nominees Pty Limited t/as ABS Transport & 2 Ors FILE NUMBER(S) : CA 40037 of 2003 A: G R Petty SC & B McManamey COUNSEL : 1R: G Little SC & P O'Connor 2R: J Hislop QC & D S Weinberger A: Maurice Blackburn Cashman SOLICITORS : 1R: A O Ellison 2R: Dexter Healey