Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360

Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360

The appeal was dismissed because the primary judge's factual findings were open on the evidence: the appellant had moved away from his co-worker into the vicinity of the reversing bulldozer despite warnings and instructions, the respondent had provided a safe system of work, and no casual act of negligence by the bulldozer driver was established. The driver had restricted rear vision and it was not shown that he would have seen the appellant had he looked. By majority, the tracked bulldozer was not a motor vehicle within the relevant statutory definition because it was not a vehicle on wheels.

Jurisdiction
Australia
Judgment Date
06 November 2009
Procedural Posture
Appeal in a Personal Injury Negligence Claim Arising From a Workplace Incident / Appeal From a District Court Verdict for the Defendant
Outcome
Appeal dismissed with costs.
Legal Topics
['safe System of Work' 'casual Negligence' 'vicarious Liability' 'contributory Negligence' 'whether a Bulldozer Is a Motor Vehicle' 'browne V Dunn']
['torts' 'negligence' 'workplace Injury' 'motor Accidents' 'statutory Interpretation'] ['safe System of Work' 'casual Negligence' 'vicarious Liability' 'contributory Negligence' 'whether a Bulldozer Is a Motor Vehicle' 'browne V Dunn']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal in a Personal Injury Negligence Claim Arising From a Workplace Incident / Appeal From a District Court Verdict for the Defendant

Legal Issues

  1. 1 ['Whether the respondent failed to provide a safe system of work for the appellant at the demolition site.' 'Whether the bulldozer driver, Mr Joseph Keirouz, was negligent in reversing the machine when the appellant was injured.' "Whether the trial judge erred in making factual findings about the appellant's position and conduct immediately before the incident." 'Whether the appellant was contributorily negligent.' 'Whether the bulldozer was a "motor vehicle" for the purposes of the Motor Accidents Compensation Act 1999 and the Road Transport (General) Act 2005.' 'Whether the trial judge erred in applying Browne v Dunn.' 'Whether damages for future care should have been fixed on a commercial basis.']

Ratio Decidendi

The appeal was dismissed because the primary judge's factual findings were open on the evidence: the appellant had moved away from his co-worker into the vicinity of the reversing bulldozer despite warnings and instructions, the respondent had provided a safe system of work, and no casual act of negligence by the bulldozer driver was established. The driver had restricted rear vision and it was not shown that he would have seen the appellant had he looked. By majority, the tracked bulldozer was not a motor vehicle within the relevant statutory definition because it was not a vehicle on wheels.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']