NERCESSIAN v SECURITY COMPUTER SERVICES PTY LTD [1998] NSWCA 157

NERCESSIAN v SECURITY COMPUTER SERVICES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and POWELL JJA 1 May 1998, 5 June 1998

[1998] NSWCA 157

NEGLIGENCE — occupiers liability — safe system of work — trial Judge entitled to accept expert evidence showing no negligence

The appellant was injured while working as an air conditioning mechanic at the premises of the respondent. While climbing out of a hatch to gain access to the air conditioning equipment the appellant fell and was injured. The appellant sued the respondent in negligence alleging that the method by which he was required to gain access to the roof constituted an unusual danger which the respondent knew or ought to have known and that the respondent failed to take any adequate precautions to prevent injury.

His Honour was not satisfied that the appellant had made out a case in negligence. The appellant submitted that the trial Judge erred by (i) not finding negligence, (ii) considering the appellant's evidence of complaints was not of great weight, and (iii) failing to apply expert evidence which established the need for an occupier to provide a ladder conforming with AS 1657.

Held:

1. It was open to the trial Judge to accept expert evidence which concluded that the respondent had taken reasonable care to protect the appellant.

2. His Honour's conclusion that the evidence of complaint in relation to risk of injury was not of any great weight was correct.

3. This Court can not and should not interfere with his Honour's decision.

Priestley JA I agree with Sheller JA. Sheller JA

INTRODUCTION

On | October 1985, in the course of his employment by Atlas Air Pty Ltd (Atlas), the appellant, Yervant Nercessian, was injured when working as an air conditioner mechanic at the premises of the respondent, Security Computer Services Pty Ltd. To gain access to air conditioning equipment on the roof of the respondent's three storey building the appellant was required to climb a ladder and open a submarine type hatch. The appellant alleged that he climbed the ladder, opened the lock, put his tool box on to the roof and when trying to climb into the opening fell from the ladder and was injured. The appellant sued the respondent to recover damages alleging negligence, the substance of which was that the method by which he was required to climb the ladder onto the roof constituted an unusual danger which the respondent knew or ought to have known and that the respondent failed to take any or any adequate precautions to prevent the appellant being injured by reason of this unusual danger.