Khaya v Container Terminals Australia Ltd

[2005] NSWCA 433

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Khaya v Container Terminals Australia Ltd [2005]  NSWCA 433

FILE NUMBER(S):
41196/04

HEARING DATE(S):               22 November 2005

JUDGMENT DATE: 09/12/2005

PARTIES:
Gilbert Khaya - Appellant
Container Terminals Australia Ltd - Respondent

JUDGMENT OF:       Giles JA McClellan CJ at CL Brownie AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 5351/03

LOWER COURT JUDICIAL OFFICER:     Gibb DCJ

COUNSEL:
L King SC & P Sternberg - Appellant
K Andrews - Respondent

SOLICITORS:
Smallwoods Lawyers - Appellant
Leitch Hasson Dent - Respondent

CATCHWORDS:
Motor Accidents Compensation Act - injury must occur at a particular time as distinct from arise out of nature and conditions of work - whether in finding adversely to plaintiff judge failed to appreciate case of aggravation of pre-existing degenerative condition - whether finding erroneous.  D

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT  
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41196/2004
DC 5351/2003

GILES JA
McCLELLAN CJ at CL
BROWNIE AJA

Friday 9 December 2005

KHAYA v CONTAINER TERMINALS AUSTRALIA LIMITED

Judgment

1. GILES JA:            The appellant commenced employment with the respondent in 1996 as a stevedore.  Initially he was employed as a casual, and by 1999 as a permanent employee.  He drove trucks and did lashing, meaning bolting containers on a ship down with steel rods.  He received training in driving fork lifts, semi-trailers with a small cabin used to move containers known as tugs, and rubber tyred gantries.  By early 2001 about three-quarters of his time was spent in driving rubber tyred gantries and the remainder in lashing or driving a forklift or a tug. 

2. A rubber tyred gantry was used to lift and move containers.  It was propelled by its own engine along concrete runways within the container terminal.  The driver sat in a cabin suspended from the top of the gantry framework, operating a spreader to lift a container and then moving the gantry to where the container was to be deposited.  The appellant sat in a chair operating levers on either side of him, but had to watch closely the spreader and the container beneath him through the glass floor of the cabin.  He had to sit forward at the edge of the seat, with his arms beside and to the back of him to operate the levers and with his knees and legs spread and his feet pointing outwards at about forty-five degrees so that he could see between his knees; his head was looking down with his back bent at about forty-five degrees.  This was a strained posture, which had to be held for five to ten minutes at a time or possibly longer as a container was lifted and moved. 

3. The appellant was working the night shift starting on 17 January 2001.  In the early hours of 18 January 2001 there was an incident which he described -

   “A.  I climbed up into the cabin, sat down, started the machine.  The trucks came, out of memory, I…