CASE NOTE

I. Introduction

The jurisdiction to settle this case is the CIVIL DISTRICT COURT. Coram is JENKINS DCJ aka
CAVANAGH v SYD MATTHEWS & CO PTY LTD [2004] WADC 11 (on January 28, 2004). The
parties can be mentioned as TREVOR PAUL CAVANAGH with the role of principal. petitioner and
SYD MATTHEWS & CO PTY LTD acting as defendant.

II. Identification of the legal issue(s)

The plaintiff – Mr. Cavanagh had suffered injuries during work for the defendant, which was his
employer. Specifically, Mr. Cavanagh had been attacked by a sheep and fell to the ground from
the height of approximate 2.5 metres, out of the trailer, whilst unloading the sheep.

Mr. Cavanagh, therefore, brought a lawsuit against SYD Matthews & Co Pty Ltd where he and
his team claimed that breached the employment contract, being false in obligation to take care
for the safety of employee and damages in negligence. However, the trail Judge found it was
only necessary to deal with the question of negligence.

These are appropriate views from the trial Judge since the plaintiff and the defendant had an
employment relationship. The defendant, therefore, had its obligation to protect its employee
from any risk of injury caused by the nature of its work. In addition, the harm that the plaintiff
had been through was a foreseeable future, because of its potential harm about to happen to
the plaintiff which is ought to be known by those running such of business in this industry. As a
consequence, the trial Judge considered the defendant was under a duty of care.

III. A critical analysis of the judge’s application of the legal rules to solve the legal issues

Unfortunately, it seems that the trial Judge had inadequate interpretations for her next
conclusion in the judgement. The trial Judge accepted the disclaimer of the defendant from
negligence when stated that there was no mandatory for the defendant to require, allow or
permit the employee off loaded the sheep from the trailer with or without safety harness.
The trial Judge believed that safety harness was an incomplete development industry at that
time; it would have been taken years to implement appropriate safety harness that it was not
simple and easy and could only be examined by the manufacture of the harness system. The
trial Judge, moreover, used similar reason to conclude that it was not practical for the
defendant to provide the plaintiff suitable personal protective equipment such as scaffold,
ladder, platform.

I find that the evidences and the trial Judge’s conclusion were lack of connection when she
came from the reason of development, usage level. It is the matter whether there was any
instruction, any guideline or any legal binding that allow the defendant not practice all the
possible available effort to protect its employee from foreseeable injury and minimise the harm
of risk from the nature.

The trial Judge mentioned about non-delegable duty of care but it was only a brief explaination.
The trial Judge, in my opinion, correctly agreed on the claim that the defendant had a non-
delegable duty of care to the plaintiff. However, her determinations are not satisfying when she
accepted it was not a negligence for the defendant when it failed to instruct, train or supervise
an experienced worker like the plaintiff.

The non-delegable duty principle, “This concept is related to that of vicarious liability (…) The
basic rule of vicarious liability is that an employer is vicariously liable for the negligence of an
employee provided the employee was acting ‘in the course of employment’ ” (1).

This well-known principle does not require an employee has to be an experienced worker to be
shared the liability of negligence by the employer. Hence, the trial Judge explained and
concluded incorrectly that there was no negligence to the defendant in this case.

To determine the plaintiff caused or contributed to his loss or damages, it is necessary for the
trial Judge to find out whether there was any wrongful act from the plaintiff, which means, as a
reasonable person, had the plaintiff done what he had to done, in his utmost care to finish his
work and avoid the risk that he knew or ought to have known.(2)
1
The Hon David Andrew Ipp, Professor Peter Cane, A/Prof. Don Sheldon and Mr Ian Macintosh, Review of the law
of Negligence, Final report (2002), 165.
2
Section 5R of the Civil Liability Act 2002 
In this case, all the terms that the defendant pleaded to prove any wrongful act from the
plaintiff only started with the defendant’s lack of care in providing for the plaintiff suitable
safety equipment.

The trial Judge, to me, left this conclusion of this contributory negligence open when she
considered there were not enough and grounded evidences to conclude the plaintiff was
negligent in causing or contributing his damages.

The trial Judge had many open findings in the judgement, some of them were applied
respectably, some of them were not and it makes the Judge.

IV. Conclusion

In the judgement, all the legal aspects were exposed by the trial Judge. Most of them was
analysed in detail carefully in favour of the defendant, some other issues, which could be the
plaintiff’s defenses, were only briefly mentioned. This leaded to inadequate in the final decision
of the trial Judge since there were more evidences that are favourable for the plaintiff in the
case.