GG RUDGE v MURRAY TRACTORS IMPORTERS PTY LTD [1989] NSWCA 179

GG RUDGE v MURRAY TRACTORS IMPORTERS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MEAGHER JA and Hope AJA 28 October 1989, 9 November 1989

[1989] NSWCA 179

Negligence — industrial accident — employee welding braces to assembly underneath tractor — employee lying on side — spark from welding fell into ear of employee and burnt through ear drum — employee wearing standard safety helmet but not sufficient to protect ear when lying sideways — employer had had personal experience similar to that of employee and knew of importance of protecting ears — no knowledge on part of employer of problem requiring employee to work under tractor or that he was working there — HELD by judge at first instance that risk of injury to ear reasonably foreseeable but no evidence of breach of employer's duty — HELD on appeal that the evidence established breach and there should be verdict for employee.

Wyong Shire Council v Shirt (1979-1980) 146 CLR 40; McLean v Tedman (1984) 155 CLR 306 and The Minister v San Sebastian [1983] 2 NSWLR 268 discussed. (1) Appeal allowed. (2) Judgment of District Court set aside and in lieu thereof judgment for plaintiff in the sum of $25,156 substituted, to date from 9 June 1988. (3) Defendant to pay plaintiffs costs of hearing in the District Court and of the appeal.

Gleeson CJ In this matter I have had the advantage of reading in draft form the reasons for judgment of Hope AJA. I agree with the orders proposed by his Honour and with his reasons for those orders.

Meagher JA I agree with Hope AJA.

Hope AJA The plaintiff has appealed against the dismissal of the proceedings which he brought against his employer for damages in respect of the injuries he suffered in an accident arising in the course of his employment. The plaintiff commenced his employment with the defendant in 1979, and worked in its workshop as a welder, a trade which he first began as an apprentice in about 1969. The defendant's business was for the most part concerned with tractors, only about ten per cent of its work concerning motor vehicles. The accident which caused the injuries occurred on 25 July 1981 when the plaintiff was fitting a front end loader bucket assembly to a Kubota tractor. These assemblies were designed and manufactured by a firm at Bowral and fitted by the defendant to tractors which it supplied. Subject to a modification which was required, the assembly manufactured by the Bowral firm was designed to be attached without difficulty on to the tractor. When the first of these assemblies was being fitted in the defendant's workshop it was found that a modification was required involving the fitting of braces close to the bucket to prevent undue flexing of the arms. The fitting of these braces was carried out before the assembly was fitted to the tractor and became routine work, the braces being supplied by the Bowral firm.