Izzard v Dunbier Marine Products (NSW) Pty Limited  NSWCA 132
June 29, 2012
Izzard was injured on 20 July 2005 in the course of his employment whilst climbing down from a trailer owned by RBI to the floor of the warehouse operated by his employer, Dunbier.
Dunbier manufactured boat trailers of various sizes at its premises and RBI was engaged to carry those boat trailers from the Dunbier premises in Victoria to the Dunbier premises in New South Wales.
The RBI trailers had adjustable uprights and frames to allow for different sized Dunbier trailers.
Izzard’s accident occurred when, while alighting from the deck of the trailer, he took hold of the perimeter frame to steady himself and the perimeter frame fell on his head.
He initially commenced a claim for damages in the District Court against RBI and later, the Transport Accident Commission (TAC), [being the third party insurer of RBI] pursuant to s78 of the Motor Accidents Compensation Act 1999 (MACA).
RBI cross claimed against Dunbier for contribution claiming that it had breached its non-delegable duty of care owed to the plaintiff as his employer.
Judge Delaney held that RBI was negligent and awarded damages in the sum of $658,119.
Otherwise His Honour held that the accident did not fall within the definition of a ‘motor accident’ pursuant to the MACA and TAC was therefore not liable and that Dunbier had not breached its duty of care. He dismissed the cross-claim.
RBI appealed on the following bases:
- His Honour erred in finding that Dunbier had not breached its duty of care; and
- His Honour erred in finding that the plaintiff’s injury did not fall within the provisions of the MACA.
The Court of Appeal (Basten McFarlane, Barrett, JJA) allowed the appeal.
In allowing the appeal, Basten J made the following findings:
- Dunbier as the employer was negligent in failing to play its part in either requiring RBI to vary the design of its vehicle, or instruct its employees not to climb onto the RBI trailer. He accepted that responsibility should be apportioned 60% to RBI and 40% to Dunbier
- The upright frames on the RBI trailer were insecure when the chains holding them in place were released. His Honour agreed with McFarlane J that the frames were negligently designed and they constituted a defect in the trailer due to the fault of the owner. His Honour concluded that the injury occurred during the ‘use or operation of’ the vehicle, being a trailer designed to carry goods and that the loading and unloading of the trailer was an essential part of its use and operation. The MACA therefore applied
- The proceedings should be remitted to the District Court to determine whether any contribution should be recoverable from Dunbier, and the amount, if any which the judgment in favour of the plaintiff should be reduced pursuant to s151Z(2) of the Workers Compensation Act 1987.
The trial judge had not considered whether the plaintiff met the 15% WPI threshold on the cross-claim, and the District Court now needed to consider this question on the material served at the trial.
In allowing the appeal, McFarlane J made the following findings:
- Dunbier was aware that its employees helped RBI unload its vehicles and that even if the plaintiff had not been familiar with what was involved, Dunbier through the plaintiff (who was the manager at the site) had an obligation to obtain that knowledge from employees who possessed it. The slightest consideration on Dunbier’s part would have revealed that the unloading operations required the metal heavy frames to be unlocked and therefore, at least for a short period of time, in a state in which a mere push, pull or knock would topple them over, quite possibly onto a Dunbier employee particularly bearing in mind that there had been at least two earlier incidents where the frames had toppled over
- The weight and composition of the frames gave rise to a real risk that grave harm might be suffered as was the case with Izzard, and simple steps had been taken after the accident to improve the stability of the unsecured frames.
If Dunbier had voiced concerns regarding the safety of its employees and requested that RBI make the modest modifications that were in fact implemented after the accident, RBI would likely have agreed to these changes
- Accordingly, his Honour found that Dunbier was in breach of its duty of care as an employer. His Honour did not consider that there was a great deal of difference between the responsibilities of RBI and Dunbier, and apportioned liability 60% to RBI and 40% to Dunbier noting that RBI’s share was greater as the dangerous frames were part of the vehicle and they had control of the use of those frames
- His Honour found that the frames were defective rendering RBI’s vehicle itself defective. His Honour considered that the cause of the plaintiff’s injury was the defective frames, and therefore found that the accident occurred in the ‘use or operation of the vehicle’ and the MACA applied
The case demonstrates the stringent nature of the duty of care owed by employers. Even if the accident was directly caused by another defendant, the employer may still be held significantly liable for its actions if they fail to take steps that could have prevented the accident given their knowledge of the system of work.
The case is also a useful application of the MACA although given the definitions of ‘injury’ and ‘motor accident’ have since been amended, the application of the case to existing cases may be limited.
Moray & Agnew acted for the successful appellant.
Authored by Shaun Jackson, Senior Associate, Sydney.
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