GLENCOR CONSTRUCTIONS PTY LTD v EVANS [1997] NSWCA 125

GLENCOR CONSTRUCTIONS PTY LTD v EVANS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER, POWELL and BEAZLEY JJA 6 August 1997

[1997] NSWCA 125

Meagher J. This is an appeal by the defendant employer against a decision of his Honour Judge Patten in favour of a plaintiff employee.

The plaintiff was employed between September 1985 and November 1985 in a demolition job which involved stripping toilet blocks and demolishing the fittings in those blocks. At the time of the accident he had already stripped seven floors out of eleven and had the contents removed. On 4 November 1985 he was attempting to demolish a cistern which was located approximately one and a half metres above the floor level over a urinal. He checked that the water was disconnected, started to prize the cistern off the wall, hit it with a crowbar and that caused a piece of porcelain to strike him on the left shin.

The evidence is somewhat ambiguous and it is not entirely clear what operation he was involved in at the time he used the crowbar. On one version of the facts he was trying to demolish the cistern while it was in situ. On another version he was trying to prize if off the wall and the act of hitting it with a crowbar was an act incident to that operation. In any event, a shard of porcelain did strike him on the left shin and that caused tendon damage which led to pain in the left foot and intermittent foot drop. Since then he has been prevented from climbing ladders and working on stairs. In addition the accident added to his pre-existing back problems and it was the combination of his left leg injury and his previous back problems which interfered with his ability to work after the accident.

The plaintiff at the time of the trial had worked only intermittently following the accident and had been in receipt of an invalid pension since approximately 1992. He was hoping after the trial to obtain a job as a security officer in Queensland. His Honour found that he was a witness of truth. His Honour awarded him a verdict in the sum of $81,766.09 after deducting fifteen per cent from a larger amount on the grounds of contributory negligence.