BORAL BRICKS NSW PTY LTD v HAGEL [1990] NSWCA 26

BORAL BRICKS NSW PTY LTD v HAGEL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MAHONEY and MEAGHER JJA 13 June 1990, 13 June 1990

[1990] NSWCA 26

MASTER AND SERVANT — ONUS OF PROOF — CAUSATION — QUESTION OF FACT — NO ERROR OF PRINCIPLE

Clarke JA This is an appeal by the defendant from a judgment given by Newton DCJ on 28 September 1988 in which he found a verdict for the plaintiff.

Although the notice of appeal challenges the verdict on liability and the verdict on damages, the argument and submissions before us have been limited to the issue of liability.

The plaintiff's case at the trial was that he received a fracture of his right scaphoid bone during the course of his employment with the defendant on Monday 24 September 1979 at about 10.00 am.

The defendant denied that he had been involved in any incident on that day but, in addition, denied that even accepting that he had been involved in an incident, a fracture of the scaphoid bone resulted.

It seems to have been accepted at the trial, and certainly has not been contested here, that if the incident occurred in the manner suggested by the plaintiff and caused his fractured scaphoid, then the plaintiff would be entitled to a verdict.

The argument below and discussion here has all focused on the two questions whether the plaintiff has satisfied the onus of showing that he received an injury at work and that a fracture of the scaphoid bone Was then occasioned.

It is, I think, unnecessary to go into great detail as to the machinery which was involved in the accident. It is sufficient to note that it was a dehacking machine by which layers of bricks were lifted from a conveyor tray, the dehacker was hydraulically operated and the lifting mechanism was constituted by eight pairs of vertically mounted metal fingers or grippers which were 40 mm by 12 mm. As I understand the operation the gripper head with its fingers would descend on to the tray and close on the bricks to be lifted and then ascend again with the bricks held between the fingers.