BABIC v WOLLONGONG FORMWORK PTY LTD [1991] NSWCA 15

BABIC v WOLLONGONG FORMWORK PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MEAGHER JJA 6 August 1991

[1991] NSWCA 15

NEGLIGENCE — worker's common law claim — jury verdict for defendant — appeal — held: Verdict open to jury — appeal dismissed.

NEGLIGENCE — employer's duty to worker — worker injured when hammering nail whilst standing on steel rods — foot slips between rods — employer fails to provide plank or other safe floor — jury returns finding of no negligence — judgment entered for employer — appeal — held: (1) In the circumstances, the employer owed a duty to the worker to avoid exposing him to immediate risks of injury. Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 applied; (2) Such duty was not a heavy obligation but one of reasonable care consonant with modern notions of industrial safety and accident prevention. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 applied; (3) In such circumstances, a verdict in favour of the worker would not have been unreasonable; (4) However, the Court of Appeal was only authorised to set aside the jury's verdict if it was so unreasonable that no reasonable jury could have so found. Hocking v Bell (1945) 71 CLR 430; Jones v Green (1956) 73 WN (NSW) 628 applied; (5) It was open to the jury to conclude that the failure of the employer to provide a plank was not in the circumstances negligent; (6) Accordingly, the verdict must stand. Observations on the changing nature of appeals from jury verdicts.

Construction Safety Act 1912. Workers' Compensation Act 1926, s63(5). ORDERS

Appeal dismissed with costs.

Kirby P The Court has before it an appeal by an unsuccessful plaintiff from anadverse jury verdict. Mr Drago Babic (the appellant) sues Wollongong Formwork Pty Ltd (the respondent) for damages on a single claim framed in the tort of negligence.