Baden Cranes Pty Ltd v Smith; Brambles Australia Ltd v Smith [2013] NSWCA 136

Baden Cranes Pty Ltd v Smith; Brambles Australia Ltd v Smith [2013] NSWCA 136

 

Before Basten JA at [1];
Ward JA at [87];
Tobias AJA at [88]
Decision The Court directs that:

(1) each party file and serve on each other party within three weeks of the date of this judgment a copy of its proposed orders (if not agreed) and short submissions in support thereof.

(2) any party wishing to respond to the orders sought and submissions in support prepared by another party, file and serve a response within five weeks of the date of this judgment.

 

Catchwords DAMAGES – torts – negligence – “just and equitable” apportionment between three tortfeasors – where one party owned and operated faulty crane and employed plaintiff – where one party carried out modifications to crane which created risk – where one party sought out modifications – impact of contractual allocation of liability – s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

TORTS – negligence – breach – scope of duty owed by modifier of crane to crane operator – risk of catastrophic failure of crane if mechanism not activated – whether duty required warning operator of risk – whether duty required instalment of failsafe mechanism – where familiar with crane structure and operation and aware that failure to activate mechanism would stress crane

TORTS – negligence – whether former crane owner breached duty of care to crane operator – where it sought modifications which created risk – where it was a commercial operator of mobile cranes – non-manufacturing distributor – no expertise in designing, constructing or installing modifications

TORTS – negligence – causation – whether appellants’ negligence “necessary condition” of harm suffered – where three consecutive and related acts of negligence by three separate parties

TORTS – negligence – causation – negligent conduct by multiple parties – whether tortious conduct of each broke causal chain between negligence of others and harm – whether subsequent negligent conduct reasonably foreseeable – where all negligent acts of same kind

TORTS – negligence – whether plaintiff contributorily negligent – where plaintiff failed to activate mechanism required for safe operation of crane – where plaintiff not warned of possible consequences of failure

 

 

David Cormack – Brisbane Barrister

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