ARCHER v GEORGE WESTON FOODS LIMITED [1996] NSWCA 21

ARCHER v GEORGE WESTON FOODS LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA, HANDLEY JA and CoLe JA 24 September 1996

[1996] NSWCA 21

EMPLOYEE jumping down 80cms — no employer's negligence in not warning employee or preventing such activity.

Cole JA. The appellant Graham John Archer was injured on 3 April 1985 when he jumped at his work place from a loading dock to the floor 80cms below. He and many others had done so constantly for at least the preceding four years without anybody suffering injury. He sued his employer in negligence, alleging both negligence and breach of s 40(1) of the Factories Shops and Industries Act 1962 in that the employer failed to provide a safe means of access by means of steps or a ladder and in negligence for failing to warn by signs or otherwise or direct employees not to jump.

Dunford J found there were in fact steps or a ladder there at the time of the accident. Accordingly the first basis of claim failed. There is no appeal from that finding.

Regarding the alternative claim his Honour said:

However, as the plaintiff's case from beginning to end was that there were no steps or ladder at the relevant time, only incidental attention was paid to this alternative claim in evidence.

His Honour further found:

The nature and extent of the risk was hardly proved especially as a number of people, including the plaintiff, jumped or stepped down over many years without incident and the only injury detailed in the evidence, apart from the plaintiffs, were by those using the ladder then in place.

Nonetheless his Honour found there was a foreseeable risk of injury to persons gaining access or exit by the loading dock, and that such risk, although slight, was not far fetched or fanciful. His Honour said that 'such risk as there was, was as obvious to the plaintiff as to anyone else'. The plaintiff bore the onus of showing that the giving of warning or instruction or erecting signs would have protected him from the danger. Dunford J thought that it would not because, if such a warning had been given, he found the plaintiff would not have taken any notice of it. That was because it was an obviously inviting way of passage, it gave no appearance of danger, it had been used by the appellant and others for many years without mishap, and the alternate access via the existing steps was less convenient.