McDonalds Australia Limited v Therma Truck Pty Limited [2002] NSWCA 268

McDonalds Australia Limited v Therma Truck Pty Limited [2002] NSWCA 268

The Master was entitled to find that the principal cause of the accident was the employer's (appellant's) failure to properly instruct and train employees, resulting in attaching cables to the wrong point. The manufacturer (respondent) was responsible for the hazardous positioning of the curtain eyelets near the attachment point, and both shared responsibility for the locking mechanism. The 70/30 apportionment was a discretionary finding open on the evidence and not unreasonable or plainly unjust. No representations founding a s 52 claim were made out on the evidence; the costs orders below were in error and special orders were warranted given the mixed success of the parties.

Parties
Appellant/cross Respondent: McDonalds Australia Limited; Respondent/cross Appellant: Therma Truck Pty Limited
Jurisdiction
Australia
Judgment Date
14 August 2002
Procedural Posture
Appeal and Cross Appeal of a Negligence/contribution Judgment / Court of Appeal Decision
Outcome
Appeal dismissed with costs; Cross-appeal dismissed with costs; Varied costs orders substituted.
Legal Topics
Employer Liability, Manufacturers' Liability, Section 52 Trade Practices Act 1974 (cth), Costs Apportionment
Negligence Product Liability Apportionment of Liability Trade Practices Employer Liability Manufacturers' Liability Section 52 Trade Practices Act 1974 (cth) Costs Apportionment

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Parties

McDonalds Australia Limited

Appellant/cross Respondent

Therma Truck Pty Limited

Respondent/cross Appellant

Procedural Posture

Appeal and Cross Appeal of a Negligence/contribution Judgment / Court of Appeal Decision

Legal Issues

  1. 1 Whether the Master erred in apportioning liability between employer and manufacturer for the plaintiff's injury
  2. 2 Whether the claim under s 52 of the Trade Practices Act 1974 (Cth) was statute barred or made out
  3. 3 Whether apportionment was unreasonable or plainly unjust

Ratio Decidendi

The Master was entitled to find that the principal cause of the accident was the employer's (appellant's) failure to properly instruct and train employees, resulting in attaching cables to the wrong point. The manufacturer (respondent) was responsible for the hazardous positioning of the curtain eyelets near the attachment point, and both shared responsibility for the locking mechanism. The 70/30 apportionment was a discretionary finding open on the evidence and not unreasonable or plainly unjust. No representations founding a s 52 claim were made out on the evidence; the costs orders below were in error and special orders were warranted given the mixed success of the parties.

Court Disposition

Appeal dismissed with costs; Cross-appeal dismissed with costs; Varied costs orders substituted.

Orders

  • Appeal dismissed with costs.
  • Cross-appeal dismissed with costs.