AYAD v AUSTRALIAN POSTAL COMMISSION [1990] NSWCA 16

AYAD v AUSTRALIAN POSTAL COMMISSION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and CLARKE JJA 4 October 1990, 4 October 1990 [1990] NSWCA 16

EVIDENCE — EXHIBITS — JURY MASTER and SERVANT — no discretion in judge to order that a document admitted as evidence should be withheld from the jury during their retirement — trial miscarried on that account — no other error of principle.

Samuels JA This is an appeal by a plaintiff who suffered judgment against him in an action heard by Mr Acting Justice Lusher and a jury of four, and brought to recover damages for injuries and their consequences sustained on 7 June 1982 while the appellant was in the course of his employment by the respondent.

The action depended upon negligence and was of a not unfamiliar kind occupying the grey frontier between a claim for workers compensation and a claim for damages at common law.

Put shortly, the appellant was employed by the respondent as a mail officer and on the day in question his duties involved taking bags of mail to trolleys called "wheelers" and pushing the wheelers to a chute down which the mail was discharged to loading docks below. This work involved tying the bags and, it seems, lifting them on the wheelers.

Obviously the weight of the bags was a material consideration and, according to the appellant's evidence, many complaints had been made by union representatives on behalf of the workers to the respondent's management concerning the failure of the respondent to ensure that the bags were not of excessive weight, by which I mean weight which was unduly arduous to handle or constituted a risk of injury.

The plaintiff tendered a booklet which became Ex A, which is headed, "Supervisors Safety Handbook", and contains a wealth of information and advice plainly directed to supervisors, designed to apprise them of the possible ways in which injury might be caused, to explain correct safety practices and to exhort them to see that they were carried out.