BURN PHILIP TRUSTEE CO LTD v CLARKE [1996] NSWCA 81

BURN PHILIP TRUSTEE CO LTD v CLARKE [1996] NSWCA 81

The appeal and cross-appeal are dismissed because, on the facts found by the trial judge, it was not shown to be wrong to find that the employer was vicariously liable for the casual act of negligence of a fellow employee who failed to warn the plaintiff of the weight of the object being moved, and it was proper to assess contributory negligence on the part of the plaintiff at 40%.

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

Case Brief

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Parties

Burn Philip Trustee Co Ltd

Appellant

Peter Clarke

Respondent

Miss Cooper

Fellow Employee

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether the employer is vicariously liable for the negligent act of a fellow employee resulting in injury to the plaintiff
  2. 2 Whether the employer was negligent in failing to provide a safe system of work, assistance, or mechanical means
  3. 3 Whether the plaintiff was guilty of contributory negligence and the appropriate apportionment

Ratio Decidendi

The appeal and cross-appeal are dismissed because, on the facts found by the trial judge, it was not shown to be wrong to find that the employer was vicariously liable for the casual act of negligence of a fellow employee who failed to warn the plaintiff of the weight of the object being moved, and it was proper to assess contributory negligence on the part of the plaintiff at 40%.

Court Disposition

Appeal and cross-appeal dismissed

Orders

  • The appeal be dismissed.
  • The cross-appeal be dismissed.