KELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS

KELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS - [1998] NSWCA 121 - NSWCA 1998 case summary — Zoe

Parties

Applicant/Plaintiff:

KELLY

Respondent/Defendant:

NARRANDERA SHIRE COUNCIL; GIO WORKERS

Cases Cited (38)

POWELL and STEIN JJA and ROLFE AJA 20 May 1998, 16 December 1998 [1998] NSWCA 121

In the light of these conclusions, and the unchallenged evidence of Mr Kelly having been that, if a seat belt had been fitted to the loader he would have worn it (as to the relevance of this evidence see Qualcast (Wolverhamption) Ltd v Haynes [1959] AC 743; McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410; 1 ALR 125) it seems to me that, although the probability is that, even if a lap type seat belt had been fitted to the loader and been worn by Mr Kelly, he would still have sustained injury, he has discharged the onus of showing that the failure to provide a seat belt caused or materially contributed to the injury which he in fact sustained.

time, it is no answer to Mr Kelly's claim to rely upon such passages as those that appear in the Judgment of Herring CJ in Baker v The Victorian Railways Commissioners ([1949] VLR 85, 88) where his Honour (with whom Martin and Fullagar JJ agreed) said:

Power Transmission Pty Ltd (1967) 69 SR 159; Wah Tat Bank Ltd v Chan Cheng Kum [1975] AC 507; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-1985) 155 CLR 448, Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574).

"However, if it be assumed that for some reason or other the respondent was required by statute to provide the appellant with a safety belt, and failed to do so, the appellant, as plaintiff, bore the burden of proving that the provision of a safety belt would, more probably than not, have averted the injury. Statements in the earlier authorities such as Vyner v Waldenberg Bros Ltd [1946] KB 50 at p55 and Roberts v Dorman Long & Co Ltd [1953] | MR 942 at p946, that once a workman has proved a breach of statutory duty, and that he has suffered injury which could have resulted from the breach, the onus of proof shifts to the employer of showing that the breach was not the cause of the injury, are not good law. The general principle is clear, that the plaintiff must prove, on the balance of probabilities, that the breach of duty caused or materially contributed to his injury: Bonnington Castings Ltd v Wardlaw [1956] AC 613 at p620; McWilliams v Sir William Arrol & Co [1962] 1 WLR 295; Wigley v British Vinegars Ltd (supra). This means that 'it is for the plaintiff to prove on a balance of probabilities both that the safety measures would have been effective and that the

In Commonwealth of Australia v McLean (1997) 41 NSWLR 389 this Court considered causation and, relevantly for present purposes, Handley and Beazley JJA, at p409 of their joint judgment, after referring to Duyvelshaff and Wilsher v Essex Area Health Authority [1988] AC 1074, cited from the judgment of Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408

(1987) 10 NSWLR 247

(1991) 24 NSWLR 156

(1995) 36 NSWLR 242

(1996) 40 NSWLR 639

(1970) 124 CLR 192

(1975) 180 CLR 177

(1985) 3 NSWLR 700

(1986) 7 NSWLR 1

(1905) 2 CLR 54

(1909) 8 CLR 54

(1951) 84 CLR 84

(1958) 99 CLR 353

(1966) 39 ALJR 505

(1985) 3 NSWLR 207

(1990) 171 CLR 167

(1973) 47 ALJR 410

(1996) 186 CLR 574

(1969) 121 CLR 342

(1973) 129 CLR 374

(1990) 175 CLR 641

(1993) 177 CLR 472

(1985) 3 NSWLR 1

(1986) 160 CLR 301

(1967) 118 CLR 424

(1956) 96 CLR 18

(1982) 56 ALJR 833

(1991) 171 CLR 506

(1997) 41 NSWLR 389

(1992) 176 CLR 408

(1991) 24 NSWLR 156

(1994) 179 CLR 332

(1990) 169 CLR 638

Cited By (1)

Bracks v Smyth-Kirk

At a glance

Court

Decision date

Source

Judgment (68 paragraphs)

Parties

Cases Cited (38)

Cited By (1)