CATCHWORDS:
Employee of subcontractor injured in course of performing specialised services in premises of third party - sues both employer and occupier - trial judge finds both responsible - duty of occupier to such entrant injured when impeded by readily visible obstruction - occupier not liable - lifting injury caused only by employee undertaking a procedure which, unknown to him through negligence of employer, involved a risk of injury to himself - whether "Bullock" order appropriate in favour of plaintiff.

LEGISLATION CITED:
Suitors Fund Act 1951
Workers Compensation Act 1987

DECISION:

The judgment entered in the District Court is amended: (i) by substituting for the amount of $251,235.20 (as the amount the first defendant, as the plaintiff's employer, was ordered to pay to the plaintiff) the amount of $314,044.01; and (ii) by substituting for the amount of $71,711.20 (as the amount the second defendant, as the occupier, was ordered to pay to the plaintiff) the amount of $322,946.41. 2. The appeal by the second defendant is allowed, the judgment entered against it in favour of the plaintiff is set aside; in lieu thereof, judgment is directed to be entered for the second defendant on the plaintiff's claim. 3. As to the costs in both the trial and the appeal - (i) the plaintiff is to pay the costs of the second defendant (and, if eligible, he is to have a certificate under the Suitors Fund Act 1951); and (ii) the first defendant is to pay the plaintiff's costs (such costs to include the costs of the second defendant which the plaintiff has been ordered to pay). 4. The cross-claim by each defendant against the other defendant for indemnity or contribution is dismissed with costs. 5. The cross-appeal by the plaintiff against the first defendant is dismissed with no order as to costs.

JUDGMENT:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40558/03
SHELLER JA
MW CAMPBELL AJA
HUNT AJA
28 April 2005

FELK INDUSTRIES PTY LTD v MALLET & ANOR

Judgment

SHELLER JA: I agree with Hunt AJA.
MW CAMPBELL AJA: I agree with Hunt AJA.
HUNT AJA: In the District Court at Newcastle, Judge Williams gave judgment in favour of Barry Ralph Mallet in proceedings he brought claiming damages for personal injury against Newcastle Fire Extinguisher Services Pty Ltd as his employer and Felk Industries Pty…

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.

Continue reading Felk Industries Pty Ltd v Mallet

Details

AGLC: Felk Industries Pty Ltd v Mallet [2005] NSWCA 111
Case: [2005] NSWCA 111
Decision Date: 28 April 2005

CaseChat Overview and Summary

Felk Industries Pty Ltd (Felk) was the defendant in proceedings brought by Mr Mallett, a subcontractor's employee. Mr Mallett sustained an injury while performing specialised services on premises occupied by Felk. The trial judge had found both Felk and Mr Mallett's employer liable for the injury.

The central legal issues before the court were whether Felk, as occupier, owed a duty of care to Mr Mallett in relation to the obstruction that impeded his work, and whether Felk breached that duty. The court also considered whether the injury was caused solely by Mr Mallett undertaking a procedure that, unknown to him due to his employer's negligence, involved a risk of injury. Finally, the court had to determine if a "Bullock" order was appropriate in favour of the plaintiff.

The court held that Felk, as occupier, did not owe a duty of care to Mr Mallett in relation to the obstruction, as it was readily visible. Furthermore, the court found that the lifting injury was caused solely by Mr Mallett's own actions in undertaking a procedure that, unbeknownst to him due to his employer's negligence, carried an inherent risk of injury. Consequently, the court determined that a "Bullock" order was not appropriate.

Orders