Scott & v McMahon & 2 Ors

NEW SOUTH WALES COURT OF APPEAL

CITATION:      YI v  THE SERVICE ARENA PTY LTD [2001]  NSWCA 400

FILE NUMBER(S):
40199/01

HEARING DATE(S):               26 October 2001

JUDGMENT DATE: 13/11/2001

PARTIES:
WON BAE YI v THE SERVICE ARENA PTY LTD

JUDGMENT OF:       Mason P Heydon JA Young CJ in Eq   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 4597/97

LOWER COURT JUDICIAL OFFICER:     Price DCJ

COUNSEL:
Appellant: R F Sutherland SC/ J W Ingram
Respondent: L King SC/  M J Jenkins

SOLICITORS:
Appellant: D Stanefska & Associates
Respondent: P W Turk & Associates

CATCHWORDS:
Negligence - Duty of Care - respondent training provider under Agreement with Commonwealth DEET - appellant attended furniture factory for work experience - back injury through heavy lifting - scope of respondent's duty of care - whether breach of duty - reasonableness of steps taken to prepare appellant - whether foreseeable risk of injury - whether non-delegable duty of care - no breach of ordinary duty of care established - no non-delegable duty. (ND)

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  40199/2001
DC 4597/97

MASON P
HEYDON JA
YOUNG CJ in EQ

Tuesday 13 November 2001

WON BAE YI v THE SERVICE ARENA PTY LIMITED

JUDGMENT

1. MASON P:  In 1994 the respondent was a training provider operating under an Agreement with the Commonwealth Department of Employment, Education and Training.  Its core obligation was to conduct a training course according to departmental guidelines for people seeking to enter or re-enter the work force.  The Agreement contemplated that trainees would be given “work experience/observation” arranged by the respondent.

2. The appellant was aged 31 at the time.  He had lived in Australia since he was 17.  He spent a short time at school before embarking upon a wide range of jobs, most of them involving manual work of one kind or another.  Between 1981 and 1986 he had jobs as a machine-operator for a liquid paper manufacturer, at a printing company, as a kitchen hand, a grocery delivery man, a plumber’s labourer and a cleaner.  Between 1987 and 1989 he worked as a machine-operator doing occasional moderate to heavy lifting.  In about 1990 he hurt his back while lifting a metal roll but was able to return to work after about two days off.  He worked as a machine-operator between 1990 and 1992.  He played soccer between 1982 and 1992.  In 1993 he ran his own business repairing car radiators, but this business failed after about six months.  He then went onto unemployment benefits.

3. In early 1994 he attended Bankstown TAFE College for about three months, doing an adult basic education course.  On 30 June 1994 he entered into a Job Search/New Start Activity Agreement.  This contract with the Commonwealth sought to make his entitlement to particular Commonwealth benefits conditional upon him making genuine attempts to obtain employment, including embarkation upon a “Return to Work Plan”.

4. In this context he enrolled with the respondent to…