ARCHIBALD WALTER SMITH v THIESS CONTRACTORS PTY LTD [1989] NSWCA 6

ARCHIBALD WALTER SMITH v THIESS CONTRACTORS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and Hope JJA 27 October 1989, 27 October 1989

[1989] NSWCA 6

EMPLOYER AND EMPLOYEE employee's claim against employer for damages for negligence — employee alleges unsafe system of work claim fails on facts at trial — on appeal, no error by trial judge apparent — no new matter of principle — appeal dismissed.

Priestley JA This appeal is from a decision of his Honour Judge Ward in the District Court pursuant to which he entered judgment for the defendant. The claim the plaintiff had made was that injury he had suffered while working for the defendant had been caused by the defendant's negligence. The injury occurred on 4 January 1982. At that time the plaintiff was working as a skilled tradesman for the defendant at and near the Liddell power station. His actual employment was as a fitter welder and motor mechanic and his duties were mainly the repair and maintenance of heavy duty equipment. The machinery upon which he was working when he was injured was a Coles crane. It had broken down about four miles from the power station in a place which was described in the evidence as being "in the bush". He had been asked by his employer to go and do the necessary repairs upon it to get it working once more. When in working condition it seems that the crane was mobile and capable of moving under its own power. The problem with it appears to have been oil leaks which had the effect of allowing oil to escape on to and under the crane.

The day when the injury happened was the third day on which the plaintiff had been working on this particular crane at this place out in the bush. He was accompanied by a person described as a TA which means "tradesman's assistant". The evidence shows that this man's job was to help the plaintiff in doing whatever cleaning jobs and jobs ancillary to that of the tradesman himself that the tradesman asked him to do.