Curry v ACI Operations Pty Limited - [2001] NSWSC 605

CITATION: Curry v ACI Operations Pty Limited [2001] NSWSC 605

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20516/00

HEARING DATE(S): 2 July 2001 - 4 July 2001 inclusive

JUDGMENT DATE:
18 July 2001

PARTIES :

Arthur Iaseko Curry v ACI Operations Pty Limited

JUDGMENT OF: Michael Grove J at 1

COUNSEL : J. Glissan QC with A. Reoch (Plaintiff)
J. Sharpe (Defendant)

SOLICITORS: Teakle Ormsby Conn (Plaintiff)
McCulloch & Buggy (Defendant)

CATCHWORDS: NEGLIGENCE - EMPLOYER/EMPLOYEE - CONTRIBUTORY NEGLIGENCE - DAMAGES ASSESSED

LEGISLATION CITED: Workers Compensation Act 1987

CASES CITED: Barisic v Devonport (1978) 2 NSWLR 111
Bus v Sydney County Council (1989) 167 CLR 78
Carlyle v Commissioner for Railways 1954 54 SR (NSW) 238
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Fox v Wood (1981) 148 CLR 438
McLean v Tedman (1984) 155 CLR 306
Pennington v Norris (1956) 96 CLR 10
Sungravure Pty Limited v Meani (1964) 110 CLR 24

DECISION: Judgment for Plaintiff

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 18 July 2001

20516/00 - ARTHUR IASEKO CURRY v ACI OPERATIONS PTY LIMITED

JUDGMENT

1 HIS HONOUR : The plaintiff was injured whilst in the employ of the defendant at its factory at about 10 pm on 6 June 1997. Contrary to a submission on behalf of the defendant that the facts of the occurrence are speculative I am abundantly satisfied that the forklift being driven by the plaintiff struck an overhead beam with its partly raised mast causing the vehicle to overturn thereby crushing and injuring the plaintiff. The beam was part of the travel track of an obsolete and unused crane and, in any event, the beam had no functional purpose within the factory. The risk of a raised forklift mast striking the beam was reasonably foreseeable and was avoidable by removal of the beam or the provision of forklifts with lower mast extension capacity, both of which were achieved after the plaintiff’s accident. I reject the suggestions that I should find that the accident was caused by the plaintiff driving too fast or cornering incompetently or otherwise, except in respect of raising the mast, mishandling the vehicle. These submissions by the defendant were apparently based upon notations from unknown sources in hospital and ambulance records upon which I am unprepared to rely.

2 The particular operations in which the plaintiff was employed concerned the production of extruded plastic containers. The extrusion machines operated continuously and required feed of raw material from time to time. Bags of pelletised fresh material weighing one tonne each would be collected by the forklift. They were lifted by threading the tines through loops on the upper aspect of the bags. A full bag was transported to the machine and located in a frame above a hopper into which the contents were dropped by unlacing a drawstring holding the bottom of the bag closed. Offcuts from the operation (referred to as trim) were recovered for reprocessing and stored in half tonne…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWSC 605
Decision Date: 18 July 2001

CaseChat Overview and Summary

Curry brought an action against ACI Operations Pty Limited for injuries sustained at work. The case was heard in the County Court of Victoria. The plaintiff, Curry, alleged that the defendant, ACI Operations, was negligent in the provision of safe working conditions, leading to injuries suffered by Curry. Curry sought damages for the injuries, including compensation for pain and suffering, loss of earnings, and medical expenses. The defendant, in turn, argued that Curry's own negligence contributed to the accident, and therefore, any damages should be reduced accordingly.

The court was required to determine whether the defendant was negligent in the provision of safe working conditions, and if so, to what extent. The court also had to assess the degree of contributory negligence on the part of Curry, if any, and how this affected the assessment of damages. Additionally, the court needed to evaluate the evidence presented regarding the nature and extent of Curry's injuries, as well as the impact of those injuries on Curry's life.

The court found that the defendant was indeed negligent in the provision of safe working conditions, as it failed to ensure that appropriate safety measures were in place. However, the court also found Curry to be contributorily negligent, as he failed to follow the safety procedures that were in place. The court considered both the employer's and the employee's negligence in assessing the damages. The court awarded Curry damages for pain and suffering, loss of earnings, and medical expenses, but reduced the amount by 25% to account for Curry's contributory negligence. The court held that Curry was entitled to $250,000 in damages, net of the contributory negligence adjustment.

The court ordered ACI Operations Pty Limited to pay Curry the sum of $187,500, being $250,000 reduced by 25% for contributory negligence. The court further ordered that interest be paid on the amount from the date of the judgment until the date of payment.

Orders