Tomic v A&G Formwork (Australia) Pty Limited

The appeal concerned a claim for damages for personal injury brought by the appellant, Mr Tomic, against the respondent, A&G Formwork (Australia) Pty Limited. Mr Tomic alleged that he sustained injuries when he slipped on a puddle of water at a construction site due to inadequate lighting and a failure by his employer to provide a safe system of work. The appeal was heard by Sheller, Hodgson and Tobias JJA of the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the lighting at the worksite was inadequate, whether this inadequacy caused Mr Tomic's fall, and whether the respondent had breached its duty of care to provide a safe system of work. The court also considered whether the primary judge had erred in rejecting certain expert evidence tendered by Mr Tomic, and whether Mr Tomic had discharged his onus of proving the necessary elements of his negligence claim.

The Court of Appeal upheld the primary judge's findings. It was held that Mr Tomic had failed to provide sufficient evidence to establish the precise state of the lighting at the time of the incident, noting his poor English and lack of detail in his evidence. The court found that the onus remained on Mr Tomic to prove the inadequacy of the lighting and that the respondent was not required to establish a specific level of illumination. Furthermore, the court found that the expert evidence relied upon by Mr Tomic was not sufficiently specific to the facts of the case and therefore the primary judge was correct in not accepting it.

The appeal was accordingly dismissed with costs.