TOY v THE SHELL COMPANY OF AUSTRALIA [1996] NSWCA 536

TOY v THE SHELL COMPANY OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, COLE JJA and Simos AJA 29 August 1996, 29 August 1996

[1996] NSWCA 536

NO DISTURBANCE — of trial judge's finding regarding contributory negligence — no question of principle.

Cole JA Hulme J entered judgment in favour of the appellant against the first respondent, The Shell Company of Australia Ltd, on 27 February 1996 in the sum of $111,988. The Shell Company had cross-claimed seeking indemnity from Conrad Constructions Pty Ltd, the second respondent, which was the employer of the appellant. The indemnity was claimed pursuant to contract. Hulme J ordered that the second respondent indemnify the first respondent pursuant to that contract. There is no appeal from that finding.

The appellant was injured on 13 November 1991 when, whilst working on the roof of the Shell Refinery, he fell against a tank stand which had been cut from the roof and was lying on it. The appellant was employed by the second respondent which had contracted with Shell to carry out roof replacement. The tank stand, after being cut down, had been moved to the position it was in by employees for whom Shell was responsible and was in the unsafe position in consequence. His Honour held that Shell was negligent. However as the tank stand was or ought to have been obvious to the plaintiff, Hulme J found that the appellant was guilty of contributory negligence to the extent of one-third. That finding has been challenged in this appeal.

There was clear evidence that the tank stand over which the appellant tripped had been in its position for some time before the accident. Indeed the appellant gave evidence in which he accepted that the tank stand was "a fairly obvious structure." The evidence disclosed it had dimensions of about 6 to 8 feet square and was something in the order of two feet high.