AUSTRALIAN PAPER MANUFACTURERS LTD v FRANKLIN [1993] NSWCA 11

AUSTRALIAN PAPER MANUFACTURERS LTD v FRANKLIN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and SHELLER JJA 1 December 1992, 7 July 1993 [1993] NSWCA 11

APPEAL from Common Law Division — Injury to employee fixing spring roller door — Judgment against employer and against owner of factory where door installed. DAMAGES — Amount of $1,000,000 by jury, including general damages of c.$500,000-$700,000 — Excessive for orthopaedic and other injuries — New trial necessary. APPORTIONMENT OF DAMAGES between employer and factory owner — Evidence to support verdict against both defendants — Apportioned $626,931 against employer and $459,802 against factory owner — Default by factory owner suggested as involving failure to warn of sprung nature of door and failure properly to supervise the work — Appeal against apportionment fails. FORM OF NEW TRIAL — Liability of employer clear — Case against factory owner sufficiently strong not to warrant new trial as to liability and apportionment — No inference that jury erred on matters other than damages — Held (Mahoney and Sheller JJA, Handley JA dissenting) new trial limited to damages.

Mahoney JA On 18 September 1985 the plaintiff was injured during the removal of a roller door at the premises of Australian Paper Manufacturers Ltd (APM) at Botany. He was employed by B and T Installations Pty Ltd ("the employer"). He sued both APM and the employer for damages.

The proceeding was heard before Sharpe J and a jury on 26-28 November 1990. On 28 November 1990 the jury returned a verdict for the plaintiff for $1,000,000. It apportioned responsibility for the damages 60 per cent to the employer and 40 per cent to APM. Accordingly judgment was entered against the employer for $626,931 and against APM for $459,802. These amounts take into account the adjustments made by the learned trial judge consequent upon the jury's verdict.