CARUANA v CONAUST (AUSTRALIA) PTY LIMITED [1991] NSWCA 46

CARUANA v CONAUST (AUSTRALIA) PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and MEAGHER JJA 27 March 1991, 27 March 1991

[1991] NSWCA 46

NEGLIGENCE — safe system of work — no evidence of preventability — jury's finding for defendant not unreasonable.

Samuels JA This is an appeal from the decision of a jury in an action for damages heard by Ireland AJ on 3 and 4 October 1989. The facts may be shortly described. The plaintiff, as I will call him (the present appellant) was a waterside worker employed by a stevedoring company Conaust (Aust) Pty Ltd to discharge a vessel in Sydney Harbour on 28 October 1982. The cargo to be discharged in Sydney, with which the plaintiff and the other members of his gang were concerned, was in the square of the hatch and was stacked above other cargo which was to be carried to and unloaded in Adelaide. There was evidence that when there are two layers of cargo, as I may describe the situation, various kinds of separation marks are used so that in the course of unloading the correct cargo will be discharged in the correct place. Sometimes containers or crates are marked with water paint, and on other occasions the demarcation between two layers of cargo is laid out by netting or boards.

In the present case there was a layer of black plastic separating the Sydney cargo and the Adelaide cargo. It was thick plastic and impenetrable to the eye, so that it was not possible to see through the plastic and examine the nature of the cargo beneath, or the way in which it was stacked, and particularly whether it formed an even and continuous layer upon which men could work with safety. Towards the end of the discharge operation the plaintiff fell through the plastic sheeting at a point where evidently there was a gap underneath, and he sustained injury. He sued his employer, the defendant (and the present respondent) in negligence asserting specifically a failure by the defendant to devise and maintain a safe system of work. The precise allegations were that the defendant had failed to inspect the area so as to ascertain exactly what lay beneath the plastic so as to ensure that the area was safe. In the alternative it was contended that the defendant was negligent in failing to give the plaintiff and his fellow workers some warning to take care as they worked on the plastic, presumably in positions from which cargo had been removed.