Schofield v Davkom Pty. Ltd. (t/as John Phillips Plumbing)

CITATION:	Schofield v. Davkom Pty. Ltd. (t/as John Phillips Plumbing) [2003] NSWCA 358
HEARING DATE(S):	27 November 2003
JUDGMENT DATE:	27 November 2003
JUDGMENT OF:	Handley JA at 1, 29, 31; Hodgson JA at 2; McColl JA at 30
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	TORTS - NEGLIGENCE - Verdict for defendant employer - Whether appealable error shown.
PARTIES :	Gregory David Schofield - appellant Davkom Pty. Limited (trading as John Phillips Plumbing) - respondent
FILE NUMBER(S):	CA 40256/03
COUNSEL:	Mr. J.D. Hislop QC with Mr. T. McKenzie for appellant Mr. G.R. Graham for respondent
SOLICITORS:	Enrights Solicitors, Maitland for appellant Sparke Helmore, Newcastle for respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	165/01
LOWER COURT JUDICIAL OFFICER :	Colin O'Connor DCJ

CA 40256/03
DC 165/01

HANDLEY JA
HODGSON JA
McCOLL JA

Thursday 27 November 2003

SCHOFIELD V. DAVKOM PTY. LTD.

t/as JOHN PHILLIPS PLUMBING

Judgment

1 HANDLEY JA: The Court will refuse the late application for an adjournment to put on fresh or additional evidence and I will ask Hodgson JA to give the first judgment.

2 HODGSON JA: On 16 December 2002, in proceedings brought by the appellant against the respondent for damages for personal injury, O’Connor DCJ entered judgment for the respondent. The appellant appeals to this Court from that decision.

3 The respondent operated a plumbing business in East Maitland and the appellant was employed as a plumber in that business. The appellant’s claim was that he sustained a back injury on or about 20 October 2000 in the course of his employment whilst lifting a drain cleaning machine known as an eel from the back of a truck. The agreed weight of this machine was 61.3 kilograms.

4 In evidence before the primary judge, the appellant accepted that there was a normal method for unloading the machine from a truck, and the primary judge found that this method was comparatively easy, not involving any undue effort and not requiring the assistance of a further employee. However, the appellant sought to make out a case that this method was not used on the occasion of his injury because the topography at the customer’s property to which he had been sent was such as to prevent this method being used. His claim against the respondent was to the effect that he had been placed in circumstances where he was required to unload the machine alone, and without being provided with a safe means of doing so.

5 The appellant’s evidence was that on 20 October 2000 he went to a job in East Maitland where the injury occurred, and that the topography there was such that he could not use the usual method because of “the descent and grade of the actual land itself”. The appellant said he later went with an expert, who gave evidence for him at the trial, to the site in question in George Street, East Maitland, this being identified in the expert’s report and otherwise at the trial as 5 George…