Brambles Australia Ltd (trading as Brambles Industrial Services) v Sandy & Anor [2006] NSWCA 357

New South Wales Court of Appeal

CITATION: Brambles Australia Ltd (trading as Brambles Industrial Services) v Sandy & Anor [2006] NSWCA 357 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29 November 2006

JUDGMENT DATE: 14 December 2006

JUDGMENT OF: Handley JA at 1; Giles JA at 2; McColl JA at 68

DECISION: Appeal dismissed. Brambles ordered to pay the costs of Mr Sandy and SGIO.

CATCHWORDS: Negligence - truck driver injured when truck overbalanced when tipping load - said he moved from being out-of-level to apparently level ground - whether trial judge in error in accepting this evidence - submission that if was level ground truck could not have overbalanced - other evidence that apparently level ground had irregularities - on facts, could have overbalanced and acceptance of driver's evidence not in error - whether negligence in not providing better tipping area - fact no accidents for a prior period not determinative - risk foreseeable and potentially serious consequences - not reasonable to ignore risk - whether driver's injury an "injury" within definition in Motor Accidents Compensation Act 1999 - no fault in his driving - fault of his employer as owner of truck was not in use or operation of truck but in the system of work for its employee - injury not within definition.

LEGISLATION CITED: Motor Accidents Compensation Act 1999 Workers Compensation Act 1987

Cruise Group Pty Ltd v Fullard [2005] NSWCA 161; CSR Ltd v Della Maddalena (2006) 224 ALR 1; Fairfield City Council v Petro [2003] NSWCA 150; Fox v Percy (2003) 214 CLR 118; CASES CITED: Francis v Lewis [2003] NSWCA 152; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; University of Wollongong v Mitchell [2003] NSWCA 94; Wyong Shire Council v Shirt (1980) 146 CLR 40.