Dairy Farmers Co-operative Milk Co Ltd v Acquilina [1963] HCA 59

High Court of Australia McTiernan, Kitto, Menzies, Windeyer and Owen JJ. Dairy Farmers Co-operative Milk Co Ltd v Acquilina [1963] HCA 59

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 9 McTiernan, Kitto, Menzies, Windeyer and Owen JJ.

This is an appeal from the judgment of the Full Court of the Supreme Court of New South Wales (Herron A.C.J. and Macfarlan J., Hardie J. dissenting) setting aside the verdict of a jury in favour of the appellant, which had been the defendant in an action in which the present respondent was plaintiff, and ordering a new trial. The notice of appeal to the Full Court listed twenty-eight grounds but the one upon which the majority decided in favour of the unsuccessful plaintiff was that at the trial evidence which the plaintiff's counsel had sought to elicit from a witness Beccaris had been wrongly rejected.

The action was a claim for damages for negligence by a worker against his employer for failing to clean up the steel floor of a cool room in which the plaintiff worked moving cases containing bottles or cartons of milk. His case was that on the night of 12th November 1956 milk which had been spilt and oil which had dropped from trolleys upon the floor had been allowed to accumulate so that the floor became slippery, causing him while at work to slip, fall and suffer injury to his back. That this was the plaintiff's real case was hardly apparent from the declaration or from the very unusual statement of particulars which mentioned a miscellany of some twenty acts or omissions ranging from "no warning" to "too many obstructions and obstacles near the plaintiff's work" but did include the following statements relating to the floor—"floor too slippery and otherwise unsafe to work upon", "floor too greasy and oily", "allowing soap and other slippery substances to accumulate on floor", "allowing milk and other liquids to accumulate on floor thus rendering it slippery".