Unver v Liftronic Pty Ltd

CITATION:	UNVER v LIFTRONIC PTY LTD [1999] NSWCA 275
FILE NUMBER(S):	CA 40869/98
HEARING DATE(S):	23 June 199
JUDGMENT DATE:	29 July 1999
PARTIES :	EROL UNVER v LIFTRONIC PTY LIMITED
JUDGMENT OF:	Mason P at 1; Meagher JA at 2; Brownie AJA at 5

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6074/97
LOWER COURT JUDICIAL OFFICER:	Dodd DCJ

COUNSEL:	H Kelly (Appellant) B Toomey QC and P Mooney (Respondent)
SOLICITORS:	Gibsons (Appellant) Vandervords (Respondent)
CATCHWORDS:	NEGLIGENCE - Work Injury - Unsafe System - Contributory negligence - No question of principle
DECISION:	Appeal upheld - direction for Short Minutes

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40869/98
DC 6074/97

MASON P
MEAGHER JA
BROWNIE AJA

Thursday 29 July 1999

EROL UNVER v LIFTRONIC PTY LIMITED
JUDGMENT

1    MASON P: I agree with Brownie AJA.

2    MEAGHER JA: In this matter I disagree with Brownie AJA. The matter seems to me to be entirely covered by the High Court decision in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492.

3    As Brownie AJA concedes, there was ample material for the jury to find contributory negligence. Indeed, he himself would put it at 20%. The appellant invented a new and dangerous system of doing his job, that new system made the use of lifting hooks (invented for his safety) impossible, and he bent his back although forbidden to do so. These are obvious acts of contributory negligence, and of some magnitude. I cannot see how the jury’s apportionment of 60% is in any way more perverse than the judges apportionment of 90% in Podrebersek v Australian Iron & Steel Pty Limited (supra) nor indeed of Brownie AJA’s apportionment of 20% in this case.

4    I would dismiss the appeal with costs.

5    BROWNIE AJA: The appellant was injured on 20 February 1995, in the course of his employment by the respondent. On the trial of his action for damages, the jury found that the respondent had been negligent, but that the appellant had been guilty of contributory negligence. The appellant appeals from the decision of the trial judge, Dodd DCJ, allowing the question of contributory negligence to go to the jury, and from the jury’s assessment that the appellant should bear 60 per cent of the responsibility for the damage.

6    I approach the case on the basis that, whilst there were a number of factual issues litigated at the trial, the jury found that the respondent had failed to provide a safe system of work; but otherwise we should assume that the jury found in favour of the respondent on all (relevant) other issues that were litigated.

7    The appellant and an apprentice, Mr Dawes, were instructed by a foreman, Mr Carson, to clean and paint some rails, intended to be used in a lift shaft (or shafts). Each rail was about 5 metres long, and weighed about 111 kilograms. They had been delivered to the site…