BAULDERSTONE HORNIBROOK PTY LTD v DON [1998] NSWCA 33

BAULDERSTONE HORNIBROOK PTY LTD v DON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and POWELL JJA 17 April 1998, 4 September 1998

[1998] NSWCA 33 NEGLIGENCE — PROCEDURAL UNFAIRNESS

NEGLIGENCE — PROCEDURAL UNFAIRNESS IN THE CONDUCT OF THE TRIAL — The appellant was employed by a glass making company, ACI, to rebuild a furnace in their factory — trenches were dug in the basement and barricades set up some metres away — there was a molten glass "leak out" from under the furnace in the basement and the water used to cool it down immersed the construction zone concealing the trenches — the respondent, an employee of ACI attending the emergency site, miscalculated a trench boundary and fell in, suffering severe burns from the liquid in the trench — the trial judge held that the respondent's injuries were a foreseeable result of the appellant's negligence in failing to adequately mark the trenches, not of any negligence of ACI — contributory negligence found and assessed at 20%.

The appellant's principal submissions were:

1. it was not under a duty of care to the respondent at the time of the accident;

2. that there were procedural defects in the conduct of the trial;

3. Garling DCJ erred in law in not finding the respondent's employer, ACI, negligent either solely or concurrently with the appellant;

4. his Honour erred in law in accepting expert evidence which was not based upon factual evidence before the court;

5. Garling DCJ erred in law in certain factual findings.

Held (by majority, Powell JA dissenting):

1. it was foreseeable that a trench with unmarked edges could result in someone falling and on the evidence it was open for the trial judge to find that had the trench been adequately marked it was likely the respondent would not have fallen in. There was a duty of care in the circumstances;