COLES MYER LTD v TAYLOR [1996] NSWCA 111

COLES MYER LTD v TAYLOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY JJA and COLE JA 25 September 1996, 3 October 1996

[1996] NSWCA 111

NEGLIGENCE — INJURY SUFFERED DURING COURSE OF EMPLOYMENT- EVIDENCE OF SAFE OR GOOD PRACTICE WITH RESPECT TO WOODEN PALLETS

Michael John Taylor (the respondent) claimed damages for injuries suffered in the course of his employment as a consequence of the negligence of his employer, Coles Myer Ltd (the appellant). At the time of his injury the respondent was stooping to lift a bag of salt from the rear of a wooden pallet. His foot became caught in a gap between the slats, he lost his balance and suffered a twisting injury to his back. The trial judge accepted the respondent's contention that the gaps between the slats on this pallet (three inches) were wider than the distance required by good practice. As the case was conducted on the basis that the sole issue to be litigated in respect of liability was whether the gaps were three inches wide, in which case it was accepted the employer was liable, a verdict was therefore entered for the respondent.

The employer appealed from both the finding of liability and the award of damages. The grounds of appeal relating to liability were that his Honour erred in finding negligence on the part of the appellant, and erred in accepting the evidence of an expert engineer in circumstances where the factual basis for the

engineer's opinion was not made out by the evidence. The award of damages was challenged on the basis that his Honour failed to give any or sufficient reasons for his preference for the views of the respondent's medical witness.

Held:

(1) While the trial judge could have rejected the respondent's case upon the basis urged upon him by the appellant, the actual analysis carried out was an appropriate means of resolving the apparent conflict in the respondent's evidence. It was open to his Honour to find on the evidence that the gap was three inches.