MICEVSKI v OTIS ELEVATOR CO PTY LIMITED [1988] NSWCA 94

MICEVSKI v OTIS ELEVATOR CO PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, MAHONEY and CLARKE JJA 5 February 1988, 11 May 1988

[1988] NSWCA 94

NEGLIGENCE — employer's liability — crane driver operating overhead moving crane with hook — struck by timber dislodged by moving crane — worker sues in negligence and for breach of s38(c) and s40 Factory Shops and Industries Act 1962 — trial judge dismisses claim — held: (allowing appeal from Wood J) (1) Appellant was entitled to succeed in negligence on the facts proved based upon the foreseeable risk of injury in the system of work of failing to secure objects in or near to the path of the moving crane mechanism and on the basis of the casual act of negligence of a fellow employee in putting timber, unsecured, near to the passage of the overhead crane parts — (2) Respondent failed to prove contributory negligence — (3) Assessment by the Court of Appeal of damages inappropriate — (4) Matter returned for retrial limited to damages.

FACTORIES — duty to ensure that goods and articles are "stored and stacked" to ensure stability and to prevent any collapse of any such goods or articles — whether Factory Shops and Industries Act 1962, s38(c) applied — held: matter unnecessary to determine as injured worker is entitled to recover by common law.

PRACTICE & PROCEDURE — appeal — new trial — assessment of damages trial by judge alone in the Supreme Court — whether Court of Appeal may assess damages — power to assess under s107 Supreme Court Act 1970 inapplicable — parties consent — held: unnecessary to determine whether s75A authorises assessment of damages — case inappropriate for assessment — alleged malingering and hysterical symptoms — passage of time since trial — retrial ordered.

Factories Shops and Industries Act 1962, s38(a),s38(c) and s40(1). Supreme Court Act 1970, s75A, s107.