Ivan Fortescue (Junior) v Neville Morrasey [2000] NSWCA 193

Ivan Fortescue (Junior) v Neville Morrasey [2000] NSWCA 193

The appeal succeeded because Mr Elton, a true employee of the respondent, was negligent in failing to keep the skidder blade behind the fifth log and to control it while the appellant repositioned the skid, exposing the appellant to a foreseeable risk of injury. The respondent was vicariously liable for that...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
31 July 2000
Procedural Posture
Negligence Damages Claim Arising From a Logging Accident / Appeal From District Court Verdict for the Respondent
Outcome
Appeal allowed with costs; District Court judgment for the respondent set aside; judgment entered for the appellant for $69,682 and costs, subject to liberty to apply concerning workers' compensation deductions.
Legal Topics
['vicarious Liability' 'employee or Independent Contractor' 'deemed Employee' 'logging Operations' 'safe System of Work' 'non Delegable Duty of Care' 'breach of Duty' 'contributory Negligence']
['torts' 'negligence' 'workers Compensation'] ['vicarious Liability' 'employee or Independent Contractor' 'deemed Employee' 'logging Operations' 'safe System of Work' 'non Delegable Duty of Care' 'breach of Duty' 'contributory Negligence']

Source-derived case record

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Procedural Posture

Negligence Damages Claim Arising From a Logging Accident / Appeal From District Court Verdict for the Respondent

Legal Issues

  1. 1 ["Whether the respondent was liable for negligence arising from the loading of logs onto the appellant's timber jinker." "Whether Mr Elton, the respondent's employee, was negligent in failing to control the fifth log during the loading operation." "Whether the respondent was vicariously liable for Mr Elton's negligence." 'Whether the respondent breached a non-delegable duty of care by failing to provide a safe system of work or supervision.' "What apportionment should be made for the appellant's contributory negligence."]

Ratio Decidendi

The appeal succeeded because Mr Elton, a true employee of the respondent, was negligent in failing to keep the skidder blade behind the fifth log and to control it while the appellant repositioned the skid, exposing the appellant to a foreseeable risk of injury. The respondent was vicariously liable for that negligence. The majority held that the appellant and Mr Elton were both responsible, but the appellant was in overall charge of the loading operation, knew the position of the log, skid and blade, and disturbed the situation by withdrawing the skid; contributory negligence was therefore assessed at 60%, producing judgment for $69,682.

Court Disposition

Appeal allowed with costs; District Court judgment for the respondent set aside; judgment entered for the appellant for $69,682 and costs, subject to liberty to apply concerning workers' compensation deductions.

Orders

  • ['Appeal allowed with costs.' 'Set aside the judgment of the District Court in favour of the second defendant.' 'In lieu thereof enter judgment for the plaintiff against the second defendant for $69,682 and costs with effect from 3 December 1999.' "Liberty for either party to apply on two days' notice to Handley JA...