Medved v Dunlop Olympic Limited - [1991] HCA 57

HIGH COURT OF AUSTRALIA

Brennan, Dawson, Toohey, Gaudron and McHugh JJ.

MILKA MEDVED v. DUNLOP OLYMPIC LIMITED

19 December 1991

Decision

BRENNAN, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. The appellant was employed by the respondent as a process worker. On 18 September 1979 she injured her back in the course of her employment when she lifted a box containing golf ball cores with the help of another employee. The appellant sued the respondent for damages for breach of statutory duty. The breach of statutory duty alleged was the respondent's failure to comply with s.36(1) of the Factories, Shops and Industries Act 1962 (N.S.W.). That sub-section provides:

"No person employed in a factory shall be allowed or required to lift or carry by hand a greater mass than:

in the case of males under sixteen years of age - 14 kilograms;

in the case of males over sixteen but under eighteen years of age - 18 kilograms;

in the case of females under sixteen years of age - 9 kilograms;

in the case of females over sixteen but under eighteen years of age - 11.5 kilograms;

in the case of females over eighteen years of age - 16 kilograms."

The appellant also claimed damages for negligence, giving as a particular of negligence the failure of the respondent to comply with s.36(1).

2. At the time she sustained her injury, the appellant was aged forty-seven years. There was a conflict of evidence about the weight of the box of golf ball cores. The evidence of the appellant was that the total weight of the box and its contents was 40.06 kilograms while the evidence of her helper, if accepted, would have established a weight of only 19.54 kilograms.

3. The appellant's claim was tried before a jury. The trial judge in his summing up charged the jury that "the weight of the load being lifted by (the appellant) when attempting to lift such weight with the assistance of the other person" was a question for them. Clearly it was open to the jury upon the trial judge's summing up to conclude that, because of the assistance which she received, the weight lifted by the appellant was less than that prescribed by s.36(1) as the maximum weight which a female over eighteen years of age was allowed or required to lift by hand. The jury returned a verdict for the respondent.

4. The appellant contended that the learned trial judge was in error in charging the jury as he did. She submitted that the prohibition in s.36(1) is a prohibition against allowing or requiring an employee to lift or carry by hand an object with a total weight greater than that specified in the sub-section, it being immaterial that the weight may be shared with someone else. On the other hand, the respondent contended that the trial judge was correct in his summing up and that s.36(1) is a prohibition against allowing or requiring an employee to exert the effort required to lift…

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: [1991] HCA 57
Decision Date: 19 December 1991

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Medved v Dunlop Olympic Limited*. The dispute concerned the interpretation of a clause in a lease agreement, specifically whether it permitted the landlord to charge the tenant for the cost of a new roof installed during the lease term. The tenant argued that the clause, which required them to maintain the premises in good repair, did not extend to the replacement of a roof that had deteriorated due to age and wear.

The central legal issue before the High Court was the proper construction of the tenant's repairing covenant within the lease. The court had to determine whether the obligation to maintain the premises in good repair encompassed the replacement of a major structural component like the roof, which had become dilapidated through normal use and the passage of time, or if it was limited to repairs that did not amount to a renewal or substantial reconstruction.

The High Court, by majority, held that the tenant's covenant to keep the premises in good repair did not oblige them to replace the roof. The court reasoned that "good repair" generally refers to the state of repair at the commencement of the lease, and that while it requires remedying defects, it does not extend to making substantial improvements or renewals. The replacement of the roof was considered a renewal rather than a repair, as the old roof was beyond repair and a new one was required. The principles applied focused on the distinction between repair and renewal, with the former implying restoration of something existing, while the latter involves substitution.

The appeal was allowed, and the orders of the lower courts were set aside.

Orders