Cleary Brothers (Bombo) Pty Ltd v Waste Recycling & Processing Service of NSW

Cleary Brothers (Bombo) Pty Ltd v Waste Recycling & Processing Service of NSW - [2007] NSWSC 1389 - NSWSC 2007 case summary — Zoe

[27]

I find that the first and second defendants breached the duty of care, which they owed to the plaintiff, in failing to have the railing at a sufficient height to prevent him from falling into the waste pit in the course of unloading operations. 12 His Honour also found that he was not satisfied that the railing was damaged or bent and that Mr Meafou's earlier head injury did not contribute to his fall. 13 Thus, Mr Meafou succeeded solely on the basis of paragraph (2) of his pleaded particulars of negligence: having a guard rail that was too low to the ground. The evidence before me establishes that the railing was not altered between the time of construction (prior to the 1994 agreement) and the time of Mr Meafou's accident. Waste concedes that there is an issue estoppel arising from the District Court judgment that the insufficient height of the rail was a reason for the fall. In my opinion, it has been established that the insufficient height of the rail as designed was the reason for the fall. 14 Immediately following Puckeridge DCJ's judgment on quantum on 23 February 2004, the transcript records counsel for the defendants raising a potential problem of conflict which he prefaced with the words "Your Honour will remember the plaintiff's case has always been damaged rail". That was incorrect, as was common ground before me, in that the pleaded particulars of negligence also went to a number of other matters, including the one on which the plaintiff succeeded, namely, that the rail was too low. Counsel shortly thereafter continued: "…there is now a potential problem. Because the contractual indemnity that exists between both defendants operates it appears as to only in circumstances where the rail is damaged not if the premises are in an undamaged state…Having made that finding it appears that the contractual indemnity may not then have operated, therefore, the situation is that there may now and probably is now, a potential conflict between the first and the second defendants…"

[30]

G-7 CARE OF THE TRANSFER STATION AND REINSTATEMENT OF DAMAGE G-7.1 Care of the Facilities under the Contract From and including the date of commencement of the obligations under the contract to the date of the conclusion of the contract as stated herein or as extended by agreement between the parties, the Operator shall be responsible for the care and maintenance of the transfer station including all equipment, machinery, buildings, offices and all facilities and shall keep all items in good order and condition, and operational where applicable, throughout the currency of the contract. In respect of any machinery or equipment or movable item the Operator shall be responsible for the safe storage and custody thereof. G-7.2 Refurbishment/Replacement The Waste Service shall be responsible for the refurbishment and/or replacement from time to time as necessary of major items of compaction equipment; and the said refurbishment and/or replacement shall be carried out by the Waste Service at mutually agreeable times with the Operator. The Waste Service undertakes that it will use all reasonable efforts to minimise any disruption to the operation of the transfer station consequent upon any such refurbishment and/or replacement but the Waste Service shall not be liable for any loss expense or damage suffered by the Operator consequent upon any such refurbishment and/or replacement and the Waste Service shall not be liable for any loss expense or damage which may be suffered by the Operator consequent upon any break-down by any of the items or compaction equipment or components thereof which may lead to the requirement for such refurbishment or replacement. G-7.3 Reinstatement If loss or damage (except loss or damage which is the direct consequence, without fault or omission on the part of the Operator, of an Excepted Risk defined in the subsequent clause) occurs to anything while the Operator is responsible for its care pursuant to the terms and conditions hereof, the Operator shall at the Operator's own cost promptly make good the loss or damage to the satisfaction of the Waste Service. G-7.4 Excepted Risks … (f) Defects in the design of the transfer station and materials and equipment as specified herein other than a design in any materials and equipment provided by the Operator.

[40]

26 The dynamic/static dichotomy for which Cleary contends does not, in my opinion, lead to the conclusion that the said condition is satisfied, even if the dichotomy (contrary to my view) is not blurred or confounded. It is fair to say that several terms of the 1994 Agreement provide some support for that dichotomy. As to the static role of Waste, cl G-1.1 provides that Waste shall "provide to [Cleary]" the Transfer Station. As to the dynamic (operating) role of Cleary, cl G-2.1 provides that Cleary is required to "staff the transfer station with sufficient competent personnel to conduct the operation as specified herein", cl G-2.7 requires Cleary to "perform its duties which are necessary and proper for the efficient operation of the transfer station as specified hereunder"; and cl G-7.1 provides that Cleary is responsible for the "care and maintenance" of the Transfer Station. Although cl G-7.3 provides that should the Transfer Station be damaged in any way while Cleary is responsible for it, Cleary must make good the loss or damage suffered, that is subject to an exclusion in cl G-7.4 for damage to the Transfer Station caused by "defects in the design of the transfer station and materials and equipment as specified herein". 27 However, the static/dynamic dichotomy is blurred, indeed confounded, by other considerations. First, there are provisions which impose large safety obligations on Cleary which appear to cut across such a dichotomy. Clause G-6.1 requires Cleary to "provide all things and take all measures necessary to protect people and property". Clause G-22.1 requires Cleary to comply with all statutory requirements. Clause S-7.13 provides that Cleary shall ensure that the requirements of the Occupational Health and Safety Act 2000 are met and shall prepare and have in place a documented Health and Safety Plan. Secondly, there are differing and detailed regimes governing physical damage to the premises (cl G-7) and public liability risks (cl G-8) which are inconsistent with the generality of the unqualified proposition that Waste was responsible for the static conduction and Cleary was responsible only for dynamic or operational matters.

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