BURN PHILIP TRUSTEE CO LTD v CLARKE [1996] NSWCA 79

BURN PHILIP TRUSTEE CO LTD v CLARKE [1996] NSWCA 79

Court of Appeal found that Grove J was in error in holding employer liable for Ms Cooper’s failure to warn. Common sense did not require warning and respondent was capable of assessing the risk. The appeal was allowed, cross-appeal dismissed, judgment entered for defendant, and costs awarded accordingly.

Parties
Appellant: Burn Philip Trustee Co Ltd; Respondent: Peter Clarke
Jurisdiction
Australia
Judgment Date
06 December 1996
Procedural Posture
Appeal / Judgment of Court of Appeal
Outcome
Appeal allowed; cross-appeal dismissed
Legal Topics
Vicarious Liability, Negligence, Employer's Duty of Care, Contributory Negligence
Tort Law Employment Law Vicarious Liability Negligence Employer's Duty of Care Contributory Negligence

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Parties

Burn Philip Trustee Co Ltd

Appellant

Peter Clarke

Respondent

Procedural Posture

Appeal / Judgment of Court of Appeal

Legal Issues

  1. 1 Whether employer is vicariously liable for negligence of fellow employee (Ms Cooper)
  2. 2 Whether employer breached personal duty to provide safe system of work
  3. 3 Whether employer failed to provide assistance or mechanical means to move credenza

Ratio Decidendi

Court of Appeal found that Grove J was in error in holding employer liable for Ms Cooper’s failure to warn. Common sense did not require warning and respondent was capable of assessing the risk. The appeal was allowed, cross-appeal dismissed, judgment entered for defendant, and costs awarded accordingly.

Court Disposition

Appeal allowed; cross-appeal dismissed

Orders

  • Orders of Grove J (17 November 1995) set aside
  • Verdict entered for defendant