Mungis (No 2) Pty Limited v Still - [2011] NSWCA 261

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mungis (No 2) Pty Limited v Still [2011] NSWCA 261
Hearing dates: 5 August 2011
Decision date: 06 September 2011
Before: Basten JA at 1; Macfarlan JA at 2, Sackville AJA at 3.
Decision:
1. Appeal dismissed.
2. Cross-appeal dismissed.
3. The appellant pay the respondent's costs of the appeal.
4. The respondent (cross-appellant) pay the appellant's (cross-respondent's) costs of the cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
NEGLIGENCE - safe system of work at factory - contract worker injured when compartment door of plastic thermoforming machine springs open under pressure - power to spindle inadvertently left on by worker thereby creating pressure on door - whether occupier breaches duty by failing to install an automatic switch shutting off power - whether occupier breaches duty by failing to instruct worker to use emergency buttons.
CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence by failing to turn machine off before opening compartment - whether primary Judge's apportionment of responsibility should be disturbed.
Legislation Cited: Civil Liability Act 2002
Cases Cited: Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263, 53 MVR 502
McLean v Tedman [1984] HCA 60; 155 CLR 306
Shaw v Thomas [2010] NSWCA 169; [2010] Aust Tort Rep 82-065
Mobbs v Kain [2009]\ NSWCA 301; 54 MVR 179
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Category: Principal judgment
Parties: Mungis (No 2) Pty Limited (in liquidation)
(Appellant)
Robert Leslie Still (Respondent)
Representation: Mr J Sexton SC and Mr H Chiu (Appellant)
Mr M Thompson (Respondent)
Thompson Cooper Lawyers (Appellant)
Gerard Malouf & Partners, Solicitors
(Respondent)

File Number(s): 2009/334577
Decision under appeal

Date of Decision:

2010-07-21 00:00:00

Before:

C Armitage DCJ

File Number(s):

2009/00334577

Judgment

BASTEN JA : I agree with Sackville AJA.

MACFARLAN JA: I agree with Sackville AJA.

SACKVILLE AJA : This is an appeal from a judgment of the District Court (Judge Armitage) entering a verdict in the sum of $226,793.20 for the respondent (Mr Still) against the appellant. The verdict was for damages for personal injuries sustained by Mr Still, an employee of a labour hire company, in a work-related accident at the appellant's factory. The appellant, a company now in liquidation, challenges…

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: [2011] NSWCA 261
Decision Date: 06 September 2011

CaseChat Overview and Summary

In *Mungis (No 2) Pty Limited v Still*, the New South Wales Court of Appeal considered an appeal and cross-appeal concerning a negligence claim brought by a contract worker, Mr. Still, against the occupier of a factory, Mungis (No 2) Pty Limited. Mr. Still suffered injury when a compartment door of a plastic thermoforming machine unexpectedly sprang open under pressure while he was working on it. The incident occurred because the power to the machine's spindle had been inadvertently left on, creating pressure on the door.

The central legal issues before the Court of Appeal were whether Mungis had breached its duty of care to Mr. Still. Specifically, the court had to determine if Mungis was negligent in failing to install an automatic switch that would shut off the power to the machine when the compartment door was opened, and whether it had breached its duty by failing to adequately instruct Mr. Still on the use of emergency stop buttons. Additionally, the court considered whether Mr. Still was guilty of contributory negligence by failing to turn off the machine before attempting to open the compartment, and whether the primary judge's apportionment of responsibility should be disturbed.

The Court of Appeal, comprising Basten and Macfarlan JJA and Sackville AJA, dismissed both the appeal and the cross-appeal. The court's reasoning affirmed the primary judge's findings regarding the breaches of duty by Mungis and the contributory negligence of Mr. Still. The court applied established principles of negligence, focusing on the occupier's duty to provide a safe system of work and the worker's responsibility to take reasonable care for their own safety. The court found that Mungis had failed to implement adequate safety measures and that Mr. Still's actions, while contributing to his injury, did not warrant a significant alteration to the apportionment of responsibility.

Consequently, the appeal and cross-appeal were dismissed. Mungis (No 2) Pty Limited was ordered to pay Mr. Still's costs of the appeal, and Mr. Still, as the cross-appellant, was ordered to pay Mungis's costs of the cross-appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. Cross-appeal dismissed.

3. The appellant pay the respondent's costs of the appeal.

4. The respondent (cross-appellant) pay the appellant's (cross-respondent's) costs of the cross-appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mungis (No 2) Pty Limited v Still [2011] NSWCA 261
Hearing dates:	5 August 2011
Decision date:	06 September 2011
Before:	Basten JA at 1; Macfarlan JA at 2, Sackville AJA at 3.
Decision:	1. Appeal dismissed. 2. Cross-appeal dismissed. 3. The appellant pay the respondent's costs of the appeal. 4. The respondent (cross-appellant) pay the appellant's (cross-respondent's) costs of the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	NEGLIGENCE - safe system of work at factory - contract worker injured when compartment door of plastic thermoforming machine springs open under pressure - power to spindle inadvertently left on by worker thereby creating pressure on door - whether occupier breaches duty by failing to install an automatic switch shutting off power - whether occupier breaches duty by failing to instruct worker to use emergency buttons. CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence by failing to turn machine off before opening compartment - whether primary Judge's apportionment of responsibility should be disturbed.
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263, 53 MVR 502 McLean v Tedman [1984] HCA 60; 155 CLR 306 Shaw v Thomas [2010] NSWCA 169; [2010] Aust Tort Rep 82-065 Mobbs v Kain [2009]\ NSWCA 301; 54 MVR 179 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Category:	Principal judgment
Parties:	Mungis (No 2) Pty Limited (in liquidation) (Appellant) Robert Leslie Still (Respondent)
Representation:	Mr J Sexton SC and Mr H Chiu (Appellant) Mr M Thompson (Respondent) Thompson Cooper Lawyers (Appellant) Gerard Malouf & Partners, Solicitors (Respondent)
File Number(s):	2009/334577
Decision under appeal	Date of Decision: 2010-07-21 00:00:00 Before: C Armitage DCJ File Number(s): 2009/00334577