Kearney v Ballyfore Engineering & Excavations Pty Limited [2011] NSWSC 210

Kearney v Ballyfore Engineering & Excavations Pty Limited [2011] NSWSC 210

Billbergia was liable because its employee devised and operated the particular system for loading flat-faced boulders, required or requested the plaintiff to give guidance from the truck ladder, and negligently dropped rather than gently placed the boulder, causing the truck to vibrate and the plaintiff to fall. Ballyfore was also liable because, although it did not control the excavator operator and was unlikely to know of the particular short-lived system, its non-delegable duty as employer required reasonable training, instruction and safeguards, including making clear that the plaintiff should not leave the truck cabin during loading. The fall on 22 February 2004 was the substantial...

Jurisdiction
Australia
Judgment Date
29 March 2011
Procedural Posture
Negligence Claim for Personal Injury Damages / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff, with damages to be calculated consistently with the reasons and leave reserved on calculation issues, costs and interest.
Legal Topics
['construction Site Injury' 'employer Non Delegable Duty of Care' 'occupier and Principal Liability' 'safe System of Work' 'causation' 'contributory Negligence' 'apportionment of Liability' 'assessment of Damages']
['tort' 'negligence' 'personal Injury' 'damages' 'workers Compensation'] ['construction Site Injury' 'employer Non Delegable Duty of Care' 'occupier and Principal Liability' 'safe System of Work' 'causation' 'contributory Negligence' 'apportionment of Liability' 'assessment of Damages']

Case Brief

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Procedural Posture

Negligence Claim for Personal Injury Damages / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Ballyfore and Billbergia owed and breached duties of care to the plaintiff in relation to the loading of flat-faced sandstone boulders on 22 February 2004.' "Whether the plaintiff's back injury and ongoing disabilities were caused by the fall on 22 February 2004 or by the later draw bar incident on or about 5 April 2004." 'Whether negligence was established in relation to the 5 April 2004 incident.' 'How liability should be apportioned between Ballyfore, Billbergia and the plaintiff for contributory negligence.' 'What heads and amounts of damages should be assessed.']

Ratio Decidendi

Billbergia was liable because its employee devised and operated the particular system for loading flat-faced boulders, required or requested the plaintiff to give guidance from the truck ladder, and negligently dropped rather than gently placed the boulder, causing the truck to vibrate and the plaintiff to fall. Ballyfore was also liable because, although it did not control the excavator operator and was unlikely to know of the particular short-lived system, its non-delegable duty as employer required reasonable training, instruction and safeguards, including making clear that the plaintiff should not leave the truck cabin during loading. The fall on 22 February 2004 was the substantial...

Court Disposition

Judgment for the plaintiff, with damages to be calculated consistently with the reasons and leave reserved on calculation issues, costs and interest.

Orders

  • ['Judgment for the plaintiff.' 'The plaintiff file minutes of orders reflecting these reasons within 21 days of the date hereof.' 'Leave reserved to each party to address on any issue affecting the calculation of damages, including any adjustments necessary to account for the time between the hearing and the date of...