Judgment date: 10 May 2012
Izzard v Dunbier Marine Products (NSW) Pty Ltd  NSWCA 132
NSW Court of Appeal1
- The principles relating to defects as discussed in Allianz Australia Insurance Limited v GSF Australia Pty Limited  HCA 26 and in Zurich Australian Insurance Limited v CSR Limited2 remain good law.
- In determining whether a vehicle is defective, one must consider its fitness for its intended use and whether or not the injury occurred in the "use or operation" of the vehicle.
On 20 July 2005 Matthew Buckley sustained severe head injuries when a steel perimeter frame fell on him as he was dismounting from a trailer owned by Haulage. The trailer was insured for third party liability by TAC Victoria. At the time of the accident, Mr Buckley was the manager of the business premises at Ingleburn in Sydney, employed by Dunbier Marine Products (NSW) Pty Ltd (Dunbier).
Mr Buckley was assisting Haulage's driver, Mr Izzard to unload the trailer. Dunbier were manufacturers of boat trailers and had engaged Haulage to transport, via semi-trailer, boat trailers and associated equipment from its premises in Victoria to Ingleburn. Haulage used heavy metal perimeter frames to keep the load in place during transit. The accident occurred when Mr Buckley used one of the perimeter frames as a hand hold to dismount from the trailer causing the perimeter frame to hit him in the head.
Mr Buckley brought proceedings in the District Court claiming damages against Mr Izzard and Haulage upon the basis they had breached the duty of care owed to him.
TAC Victoria was joined as a defendant to the proceedings as it had denied that Mr Buckley's injuries fell within the definition of "injury" in the Motor Accidents Compensation Act 1999 (the Act). TAC Victoria refused to indemnify Mr Buckley as it contended his injuries had not been caused by a defect in the vehicle during its use or operation.
Delaney DCJ held that the injury sustained by Mr Buckley did not fall within the provisions of s 3 of the Act. His Honour determined that Mr Izzard and Haulage were both negligent and Mr Buckley was 20% contributorily negligent.
In addition, both Mr Izzard and Haulage issued a cross claim against Dunbier for contribution or indemnity in respect of the damages claimed by Mr Buckley. The cross claim was dismissed on the basis that Dunbier was not negligent.
Court of Appeal Decision
Was it a motor vehicle accident?
Macfarlan JA concluded that the perimeter frames were defective as when unsecured, they were unstable. On the facts, it was revealed that the frames needed to be unsecured for a period of time to fulfil their intended purpose.
Mr Izzard's job was to unlock the frames and then with the assistance of a Dunbier employee, to move the frames and then secure them again. His Honour noted that there was a period of time in which the frames were unsecured when people were likely to be moving near them.
Having satisfied himself that there was a defect in the vehicle, his Honour then turned to the question of causation. His Honour concluded that the pressure that Mr Buckley applied to the relevant frame caused it to topple onto him, causing his injuries. Of note, following Mr Buckley's accident, Haulage modified the bases of the frames to provide them with greater stability.
The court held that the defective nature of the frames "resulted in and caused" Mr Buckley's injuries within the meaning of the definition of "injury". Macfarlan JA explained at :-
"This would not have occurred if the post-accident modifications designed to stabilise the frames had been made prior to the accident. To use the language of the plurality in Allianz v GSF, the defect in the frames "had a predominant quality for, and an immediacy to [Mr Buckley's] injury." The present case more closely resembles Zurich Australian v CSR where the defective ramp was being used for the purpose for which it was intended, but its defective character resulted directly in injury to the employee."
As such, the court held that the accident was one which invoked the Act.
Non-delegable duty owed by the employer
Macfarlan JA concluded that Dunbier had breached its non-delegable duty of care to Mr Buckley. Dunbier argued that at its highest, there had been a causal act of negligence by an independent contractor and as such, Dunbier was not liable to its employee for the consequence of such an act. His Honour found whilst it may be accepted that an employer is not liable in respect of such an act, the employer will nevertheless be liable, where, as in this case, one of its employees is injured in circumstances where there was a failure to provide a safe system of work for its employee.
Macfarlan JA stated at :
"Dunbier's departure from the requisite standard of care was also significant. Through the involvement of its employees over a period of years in the unloading operations, it was, or should have been, cognisant of the dangerous situation that existed when the frames were unsecured. Yet it took no steps to ensure the safety of is employees. Dunbier, along with Mr Izzard and Haulage, was well able to take steps to prevent an accident such as that which occurred to Mr Buckley."
Accordingly, Macfarlan JA found Dunbier 40% liable and Izzard and Haulage 60% liable with Izzard and Haulage's greater liability being on the basis that the dangerous frames formed part of Haulage's vehicle and Izzard had control of the use of the frames on the vehicle.
The emphatic language of the definition of injury in what is now s 3A of the Act, requires that the injury must be caused in the use or operation of the vehicle. When determining whether or not a vehicle is defective, it is appropriate to first consider its fitness for its intended use. The defect must be shown to be in the vehicle in accordance with the principles in Zurich v CSR and not as a result of a negligent direction given by an employer.
It is important to remember that unloading cases can no longer be maintained since the changes to Section 3 of the Act for accidents occurring on or after 1 October 2006. Whilst a different outcome might have occurred, in this case, had the accident taken place after that date, the other principles enunciated above remain relevant.
The employer's duty to provide a safe system of work is non-delegable reaffirming the principles applied by the High Court in Kondis v State Transport Authority 3 . This includes liability arising out of a casual act of negligence on the part of an independent contractor which also results from the failure of the employer to provide a safe system of work for its employee.Footnotes
1 Basten JA, Macfarlan JA and Barrett JA
2  NSW Court of Appeal 261
3  HCA 61
Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.