White v Malco [1999] NSWSC 1055

White v Malco [1999] NSWSC 1055

Malco owed duties substantially like an employer to the plaintiff and breached them by providing defective equipment. The plaintiff was injured as a result; Skilled owed non-delegable employer duties and is liable for Malco's failure to take reasonable care to provide safe equipment. Plaintiff's own negligence contributed to accident; damages diminished by 10%. Malco is entitled to indemnity from Prevwreck for breach of implied fitness-for-purpose term; Prevwreck is entitled to indemnity from Liftqip on common law implied term. Cross-claims based on statutory agency under Motor Accidents Act fail due to absence of driver fault.

Jurisdiction
Australia
Judgment Date
29 October 1999
Procedural Posture
Personal Injury Negligence / Preliminary Judgment
Outcome
Verdict for plaintiff against both Malco Engineering Pty Ltd and Skilled Engineering Pty Ltd; preliminary judgment.
Legal Topics
["employer's Duties" 'hire of Goods' 'fitness for Purpose' 'vicarious Liability' 'implied Contractual Terms' 'contributory Negligence' 'statutory Agency' 'duty of Care']
['negligence' 'personal Injury' 'employment Law' 'contract Law' 'trade Practices'] ["employer's Duties" 'hire of Goods' 'fitness for Purpose' 'vicarious Liability' 'implied Contractual Terms' 'contributory Negligence' 'statutory Agency' 'duty of Care']

Case Brief

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Procedural Posture

Personal Injury Negligence / Preliminary Judgment

Legal Issues

  1. 1 ['Did Malco owe duties analogous to those of an employer to the plaintiff?' "Was Malco vicariously liable for its employee's alleged negligence?" 'Was the forklift defective and unsafe?' 'Did Skilled discharge its non-delegable duties to its employee?' 'Was the plaintiff contributorily negligent?' 'Was there an implied term as to fitness in the contract for hire of the forklift under Trade Practices Act or at common law?' 'Are cross-claims under Motor Accidents Act statutory agency provisions established?' 'Was Prevwreck, Lift Truck Services or Liftqip contractually at fault for the supply of the forklift?']

Ratio Decidendi

Malco owed duties substantially like an employer to the plaintiff and breached them by providing defective equipment. The plaintiff was injured as a result; Skilled owed non-delegable employer duties and is liable for Malco's failure to take reasonable care to provide safe equipment. Plaintiff's own negligence contributed to accident; damages diminished by 10%. Malco is entitled to indemnity from Prevwreck for breach of implied fitness-for-purpose term; Prevwreck is entitled to indemnity from Liftqip on common law implied term. Cross-claims based on statutory agency under Motor Accidents Act fail due to absence of driver fault.

Court Disposition

Verdict for plaintiff against both Malco Engineering Pty Ltd and Skilled Engineering Pty Ltd; preliminary judgment.

Orders

  • ['Plaintiff succeeds against Malco and Skilled; Malco to bear 80% and Skilled 20% liability between them.' 'Malco entitled to indemnity from Prevwreck for breach of implied fitness terms; Prevwreck entitled to indemnity from Liftqip.' 'Cross-claims against Syd-Fam and statutory agency claims fail.' 'Damages to be...