Cuthbert v Thomson [2003] NSWCA 377

Cuthbert v Thomson [2003] NSWCA 377

The appellant's act of throwing fuel onto smoking logs was done in full appreciation of the risks involved, was outside the prescribed system of work, and thus amounted to contributory negligence. The employer breached the duty of care by failing to provide a safe system of work, but the appellant bore responsibility for his deliberate conduct contrary to common knowledge and instruction. The trial judge's error regarding evidence about the co-worker's conduct did not vitiate the finding of contributory negligence, but affected the proportion for reduction of damages; however, by majority the appeal is dismissed and the apportionment stands.

Parties
Appellant: Kenneth Stanley Cuthbert; Respondent: Ben Thomson
Jurisdiction
Australia
Judgment Date
11 December 2003
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Contributory Negligence, Unsafe System of Work, Duty of Care, Apportionment of Damages
Tort Law Personal Injury Contributory Negligence Unsafe System of Work Duty of Care Apportionment of Damages

Case Brief

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Parties

Kenneth Stanley Cuthbert

Appellant

Ben Thomson

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the appellant's actions in igniting the stack of wood were part of a prescribed system of work
  2. 2 Whether contributory negligence by the appellant can be sustained and the appropriate apportionment of damages

Ratio Decidendi

The appellant's act of throwing fuel onto smoking logs was done in full appreciation of the risks involved, was outside the prescribed system of work, and thus amounted to contributory negligence. The employer breached the duty of care by failing to provide a safe system of work, but the appellant bore responsibility for his deliberate conduct contrary to common knowledge and instruction. The trial judge's error regarding evidence about the co-worker's conduct did not vitiate the finding of contributory negligence, but affected the proportion for reduction of damages; however, by majority the appeal is dismissed and the apportionment stands.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.