COSMARNAN CONCRETE PTY LTD v ZUVELA [1995] NSWCA 99

COSMARNAN CONCRETE PTY LTD v ZUVELA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and POWELL JJA 24 May 1995, 6 July 1995 [1995] NSWCA 99

NEGLIGENCE — PROVISION STANDARD EQUIPMENT BY EMPLOYER TO EMPLOYEE — ADAPTATION BY EMPLOYEE OF EQUIPMENT — DUTY OF CARE.

FACTS: The plaintiff respondent, Mr Zuvela, was working as an employee of the appellant when he sustained an injury. While driving pegs into the ground with a 14-pound sledge hammer for the purpose of laying concrete formwork, he was struck in the groin by the handle of the hammer. This blow caused a fracture of the neck of the femur, and later the avascular necrosis of the head of the femur.

The respondent was accustomed to use a particular sledge hammer the handle of which, although originally of standard size, he had shortened by about 5 inches to increase its safety. Mr Zuvela regarded this adapted hammer as his. On the day of the accident in question, he found that the handle of his hammer had broken; he was then told by the foreman, Mr Nick Nicomedes, to use a standard size hammer, and to work under the direction of Mr Mario Nicomedes. Having pointed out to Mr Mario Nicomedes that a standard size hammer was not suitable for him, he was asked "What are you going to do? Go home or stick with the job?" The respondent started driving pegs into the ground with the standard hammer.

HELD: (1) (By Meagher JA, Handley and Powell JJA agreeing) Where a worker, for reasons of safety, needs a hammer the handle of which is adapted to the worker's own personal requirements, the employer does not fulfil the duty of care owed to the worker by supplying hammers which are standard.

(2) (By Meagher JA, Handley and Powell JJA agreeing) Where, as in this case, workers are supplied by their employer with the means of adapting standard tools to their own safety requirements, and where the employer encourages such adaptation, there can be no negligence in supplying standard tools to workers.