Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31

Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31

The plaintiff did not establish that there were any precautions which, under s 5B of the Civil Liability Act 2002, a reasonable person in Transpacific's position would have taken against the risk of slipping or tripping while moving the cabinet. The primary judge's findings relied on unsupported matters, including that the plaintiff had complained about the particular task, that Transpacific insisted the particular cabinet be moved, a lifting injury analogy, the possible use of an electric stair-climber, and speculative use of carrying straps while walking forwards. The system actually described, involving a three-wheeled trolley and coordinated communication between workers, was accepted...

Jurisdiction
Australia
Judgment Date
26 February 2013
Procedural Posture
Appeal and Cross Appeal in Negligence Proceedings for Workplace Injury / Appeal From District Court Judgment and Orders of 15 December 2011; Application by Second Respondent for Leave to File Notice of Cross Appeal
Outcome
Appeal allowed; cross-appeal allowed; District Court judgment and orders set aside; judgment entered for both defendants against the plaintiff.
Legal Topics
['duty of Care' 'breach of Duty' 'host Employer' 'labour Hire Employee' 'safe System of Work' 'foreseeable Risk' 'commonplace Activity' 'cross Appeal Out of Time']
['torts' 'negligence' 'workplace Injury' 'civil Procedure'] ['duty of Care' 'breach of Duty' 'host Employer' 'labour Hire Employee' 'safe System of Work' 'foreseeable Risk' 'commonplace Activity' 'cross Appeal Out of Time']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in Negligence Proceedings for Workplace Injury / Appeal From District Court Judgment and Orders of 15 December 2011; Application by Second Respondent for Leave to File Notice of Cross Appeal

Legal Issues

  1. 1 ['Whether Transpacific, as host employer, breached its duty of care to the plaintiff when he lost his footing while moving a cabinet up stairs.' 'Whether the risk of slipping or tripping while moving the cabinet required warnings, instructions, different equipment, professional removalists, or other precautions under s 5B of the Civil Liability Act 2002.' 'Whether, if Transpacific was not in breach of duty, the finding of breach against Workpac could stand.' 'Whether leave should be granted to Workpac to file a notice of cross-appeal out of time.' 'Whether the damages awarded for domestic assistance or attendant care were excessive.']

Ratio Decidendi

The plaintiff did not establish that there were any precautions which, under s 5B of the Civil Liability Act 2002, a reasonable person in Transpacific's position would have taken against the risk of slipping or tripping while moving the cabinet. The primary judge's findings relied on unsupported matters, including that the plaintiff had complained about the particular task, that Transpacific insisted the particular cabinet be moved, a lifting injury analogy, the possible use of an electric stair-climber, and speculative use of carrying straps while walking forwards. The system actually described, involving a three-wheeled trolley and coordinated communication between workers, was accepted...

Court Disposition

Appeal allowed; cross-appeal allowed; District Court judgment and orders set aside; judgment entered for both defendants against the plaintiff.

Orders

  • ['Grant to the second respondent leave to file its notice of cross-appeal.' 'Appeal allowed.' 'Cross-appeal allowed.' 'Set aside the judgment and orders of the District Court of 15 December 2011.' 'Judgment for the first defendant against the plaintiff.' 'Judgment for the second defendant against the plaintiff.'...