Ankovics v Delta Services Pty Ltd [1990] QSC 298

10 2C· IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION •BEFORE MR. JUSTICE BYRNE ROCKHAMPTON, 16 AUGUST 1990 No. 105 of 1985 ... ··--- ! I F•r.:\/ICr.:Q er.DI[::<"' ••.~,:-,, ICQ ·1 ,:.._ ,,_,1..... 1• 1...•I :·._C,. :•.)0\JC!. l C:1:rt R•,·o )ft'n~'. F:.Jreau I1 1-~~=.3 ~!_,r_~ ;_E_-1: (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: PETER ANKOVICS -and- DELTA SERVICES PTY. LIMITED JUDGMENT Plaintiff Defendant HIS HONOUR: The plaintiff, then aged about 55, was I injured during the course of his employment by the defendant on 1 10 20 :)_: Friday, 7 March 1983. The plaintiff was employed by the 3.-, defendant in building work. At the time he was working in Blackwater. His principal responsibility that day was to install a new vinyl floor. It was necessary for him to obtain a roll of the product from a storeroom. The roll required for the purpose of his work was large and heavy. The plaintiff ..;.J went to the storeroom to obtain a 180 centimetre long roll of new vinyl. The precise weight was not the subject of oral · evidence, but in a report of Geoff McDonald and Associates . Pty. Ltd. dated 28 June 1989 (Exhibit 1) the author expresses' an understanding that the individual roll the plaintiff was to, carry to the job site was 1.83 metres in length with a diameter· of .35 of a metre and, according to the report, "The weight of each roll was approximately 120 kilograms." To move the roll to the site the plaintiff decided to use a motor vehicle. The' ~ ' ----------------------.. ---·--------------------------------·--------------------.. ---------·-----------------------·' f·L Cio.t Pr:,·.t-::r. Qtd 1 -- 1 of 5 -- motor vehicle was the property of the defendant. Its registered number was OMZ 231. The vehicle was at all times. insured by the third party, Suncorp Insurance and Finance. The · vehicle was driven to the storeroom. There, unaided, the i plaintiff moved the roll to the utility vehicle. The tail gate: 1o was not lowered at any time. The plaintiff moved this heavy 10 · roll · to the metal side of the utility vehicle. He used, it' seems, both hands to raise the roll and put it against the side: of the utility. As I understand the evidence, the result of this activity was that the vinyl roll was left standing against 20 the side of the truck. The plaintiff then bent down. He. placed both hands at the base of the roll intending to then: raise it and lift it into the vehicle. Then, as he lifted the 'roll from the storeroom floor, he felt pain in his back. He suffered back injury as a· result. i The injuries are the subject; 3,: of a claim for compensation made by this litigation. The plaintiff and the defendant have compromised the proceedings as between themselves. At the conclusion of the trial the only issue remaining for my determination was whether; the plaintiff had established that his injuries were sustained in circumstances which meant that the defendant was legally liable, by way of damages "in respect of" its utility vehicle for the injuries the plaintiff sustained, against a background where it is accepted that if the plaintiff's account is true, the defendant's liability in negligence is established. The ~ssues for determination then are whether the plaintiff's factual account is correct and, if so, whether the application of the principles discussed in Technical Products Pty. Ltd. v. State Government Insurance Office (Queensland) (i989)Vol. 167 C.L.R. p.45 require the result -------- ___ , -· -------·--- (le,-.\ F'r,ntPr. Old 2 3:J -- 2 of 5 -- 10 'that the defendant succeeds in establishing an entitlement to: ' I indemnity from the third party as the compulsory insurer of the! ': vehicle. There was evidence adduced from a Mr. Harvey concerning the circumstances of the accident. I prefer .the plaintiff's account. Harvey did not impress me as having a distinct recollection of the events in question. It is likely_that a'. conversation which he had with the plaintiff on the Monday after the accident has been indistinctly recalled by him. The plaintiff's version of the events should. be accepted. The. 10 20 findings which I have expressed show that I have accepted his' 2G account. The findings which I have made reveal that the plaintiffj sustained his injuries in the course of actually loading the! ! vehicle. The vehicle was, as Mr. Mellick describes it in ; argument, an integral part of the system of work. It was used to take the plaintiff from the place of work to the storeroom. The vehicle was then intended to be used to load the vinyl roll and transport it to the job site. More importantly, for ' present purposes, 'the way in which the plaintiff went about jU 4 J the task of loading the vehicle contributed to his injuries. • o The method, as I have said, involved attempting to lift the base of the roll so that the whole of the roll was taken over the side of the vehicle and then on to the back of the utility.; The back injury was sustained in the course of this activity. The way in which the plaintiff effected the lifting was• so influenced by features of the utility. The size and shape of: the roll taken in conjunction with the raised metal sides and closed tail-gate all protruding above the tray of the utility meant that, in the absence of additional assistance to the ------· -----~-- .. - 3 (U -- 3 of 5 -- 10 .. ~ , plaintiff, it was necessary for him to attempt to load the vehicle in the manner in which he did. The vehicle was not a mere passive receptacle. It contributed to the employer's • liability in negligence for failing to provide a safe system of work. The application of tpe principles in Technical Products 10 leads to the conclusion that the defendant has established an entitlement to-indemnity. Since Technical Products was decided the principles which that case expresses have been the subject of further consideration, most recently by the Full Court in T.P. Novak v. Meggitt Limited and others, No. 1592 of 1983, where Mackenzie J., on 15 March this year, delivered reasons in which: Kelly S.P.J. and Ryan J. agreed. At page 3 of the reasons His Honour adverted to what the Chief Justice had said in Glover v. Politanski, Full Court, unreported, 15 December 1989 namely 3G that: 11 In cases like the present, the principles which are to : be applied are now authoritatively stated in the decision in Technical Products ..• Any remaining difficulties will occur in the course of application of those principles ' and the fact of a particular case ... 11 At pages 5 and 6 of his reasons in Novak Mackenzie J. quoted with apparent approval these passages from the reasons for judgment of Ryan J. in Glover v. Politanski: • 11 It would be wrong, in my opinion, to deduce from this that an owner's liab.ili ty will not be in respect of a , vehicle if an accident occurs in the course of loading· the vehicle. As Dawson J. pointed out in the Technical Products case it was the way in which the forklift was 50 being used which gave rise to liability on the part of the employer, not any use being made of the trailer ... it can be seen that in general there will be a discernible and rat'ional link between legal liability for failing ,to provide a safe system of work in loading the vehicle 'and the· motor vehicle in question if the work involves the actual act of loading the vehicle, the risk to which the plaintiff was exposed was not merely a risk 4 -- 4 of 5 -- 1n of injury through handling bags of cement. It was a risk• of injury through handling them for the purpose of:loading them onto a vehicle. That suffices, in my 1 opinion, to make the liability one with respect · to the vehicle." Mackenzie J. also referred, with apparent approval, to• what the Chief Justice had said in Politanski, namely: "I consider that features of the utility actively and not merely passively contracted to the damages which the plaintiff suffered so that a discernible and rational link appears between the basis of legal liability and the particular motor vehicle." Whether the way in which Macrossan C. J. in Glover approached the problem or the exposition of principle by Ryan J. in that case be adopted, the result, for the present purposes, is the same. On the findings I have made (i) features of the vehicle· actively contracted to the injury which the plaintiff suffered; i and (ii) the loading occurred in circumstances in which the 10 --.,-, -~ ~c risk of injury was exposed by the unsafe loading by hand of the 30 vinyl roll into the defendant's vehicle. It should, therefore, be determined that the third party is obliged to indemnify the defendant in respect of its liability to the plaintiff. j There will be judgment for the plaintiff against the~ ..l(! defendant as agreed between those parties for $100,000 with ' -10 costs, including reserved costs, to be taxed on the following basis: to and including 1 November 1989 on the scale of costs provided for taxation in the Supreme Court and thereafter on the scale provided for by the appropriate scale of costs for: ' taxation in District Courts. There will be a further order that the third party pay to the defendant the sums which the defendant is liable to pay to the plaintiff as aforesaid and that the third party pay to the defendant the defendant's costs of the third party proceedings. ---------- --- 5 50 -- 5 of 5 --