REYNOLDS v PLASPAK PTY LTD [1997] NSWCA 267

REYNOLDS v PLASPAK PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY JA AND GROVE AJA 18 April 1997, 15 October 1997

NEGLIGENCE — FACTORIES SHOPS AND INDUSTRIES ACT 1962 — WORKERS COMPENSATION ACT 1987- — On appeal the appellants submitted: (1) the trial judge erred in finding that the respondent was not an occupier of certain space within the respondent's premises which was rented by the appellant's employer and in which the appellant worked and suffered injury by falling; and, (2) the respondent was in breach of its duty under s40(1) of the Factories Shops and Industries Act 1962. The respondent had raised s151Z of the Workers Compensation Act 1987 as a defence in addition to its other defences.

Held: (1) The respondent was an "occupier" of the space in the factory rented by the appellant's employer within the meaning of that word in s4 of the Factories Shops and Industries Act 1962; (2) (Priestley JA dissenting) there was no evidence before the trial judge upon which he could have found, as a matter of fact, that there had been a breach of s40(1) by the respondent: accordingly the appeal failed and it was unnecessary to consider any issues raised by the s151Z defence.

Austral Bronze Co Pty Ltd v Ajaka (1970) 44 ALJR 155 Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305 Australian Oil Refining Pty Ltd v Bourne (1980) 28 ALR 521 Hopwood v Rolls Royce Ltd (1947) 176 LT 514 Rolland v United Glass Bottle Manufacturing Co Ltd [1959] SLT (Notes) 10 Trimp v SA Butler Pty Ltd [1964-5] NSWR 1031 Vabu v Commissioner of taxation (1996) ATC 4898; (1996) 33 ATR 537

Mason P I agree with Grove AJA. Priestley JA

Appellant's case at trial.

The appellant in this appeal, Mrs D Reynolds, injured on 25 May 1990 in premises owned and used as a factory and warehouse by the respondent, Plaspak Pty Ltd (Plaspak), brought proceedings for damages against Plaspak. Her appeal is against the dismissal of those proceedings by Gallen ADCJ in the District Court.