Huang v Mansell [2000] NSWCA 9

New South Wales Court of Appeal

CITATION : Huang v Mansell [2000] NSWCA 9 FILE NUMBER(S) : CA 40159/99 HEARING DATE(S) : 15 February 2000 JUDGMENT DATE : 21 February 2000

PARTIES : Jie Huang (Appellant) v David Ewen Mansell, John William Byram Mansell & June Elizabeth Mansell, T/AS Australian Squatter's Chair Co. (Respondents)

JUDGMENT OF : Powell JA; Fitzgerald JA; Hodgson CJinEq

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9943/97 FILE NUMBER(S) : LOWER COURT Garling J JUDICIAL OFFICER :

COUNSEL : Appellant - Mr J. Anderson / Ms E. Glover Respondents - Mr H. Halligan SOLICITORS : Appellant - M.F. Twemlow & Co Respondents - Neville & Edwards CATCHWORDS : Negligence - no question of principle DECISION : Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40159/99 DC 9943/97 POWELL JA FITZGERALD JA HODGSON CJ in Eq

Monday, 21 February 2000

HUANG v MANSELL

JUDGMENT

1 THE COURT: At the conclusion of the hearing, the Court dismissed an appeal by an unsuccessful plaintiff whose action in the District Court was dismissed on 17 February 1999. Our reasons for that decision may be briefly stated. 2 On 4 October 1996, the appellant was injured at the respondent's factory, where he was employed. His hand was badly cut in the course of changing the blade in a router machine. He had reached under the bench where the machine was located to loosen nuts to enable him to detach the machine from the bench where it was located so that he could get to the blade, when the machine came away from the bench, an electrical switch was activated and the blade commenced to operate, cutting him. 3 The trial judge rejected the appellant's evidence that he had seen other people change the blade in that way, that he had not been told not to do so, and that he had received no instructions in relation to changing the blade. His Honour preferred the evidence of two of the other respondent's employees, Mr Scully and Mr Lee. Mr Scully commonly performed the role of factory foreman, and, in the absence of Mr Scully and another employee, Mr Lee sometimes did so. 4 Both Mr Scully and Mr Lee agreed that the proper method of changing the blade was to turn the power off and remove the plug, then turn the bench upside down so as to give easy access to the machine where the blade was located. Changing the blade was then quite a simple operation in which the appellant could not have been seriously injured. Both Mr Scully and Mr Lee said that, in the period of approximately six years during which the appellant had been called upon to change the blade from time to time, the respondents' employees, including the appellant, had been instructed how to change the blade correctly on about five occasions. Mr Scully had not seen anyone changing the blade by the method adopted by the appellant. Mr Lee had seen the appellant change the blade by the method which he adopted when he was injured, had told the appellant that he should not do it that way and had demonstrated how to change the blade. 5 The rejection of the appellant's case obviously placed him in difficulty. However, in this Court at least, an attempt was made to take advantage of evidence from Mr Scully that he was unaware that the appellant was disobeying the instructions which had been given concerning the proper method for changing the blade. It was submitted that Mr Scully's lack of knowledge demonstrated that the respondents had failed in their duty of care to the appellant by omitting to ensure that he was complying with the instructions which he had been given and performing a potentially dangerous task safely. 6 Counsel who appeared in this Court were unable to agree whether such a case had been advanced before the trial judge, and, understandably in view of the appellant's evidence, that is not how his case was pleaded. Nor did the expert called for the appellant at trial suggest that the respondents breached their duty to the appellant by failing to supervise him properly. Nonetheless, there are some allegations in the appellant's pleading which were arguably wide enough to enable such a case to be advanced, and the same can be said of some small segments of the evidence given by the respondents' witnesses, especially in cross-examination. 7 However, assuming, as the appellants submitted, that an employer is under a duty not merely to instruct how a potentially dangerous activity is to be conducted but to supervise an employee's performance of that duty in appropriate circumstances to ensure that the instructions are being complied with, the appellant failed to establish a breach of such a duty by the respondents which was causally related to the injury which he suffered. 8 The appellant's case was that he was not instructed how to change the blade safely. Implicit in the case which he now wishes to advance is the proposition that, if he had been supervised by the respondents and, after it was noticed that he was not obeying instructions, directed to do so, he would have complied. The evidence was strongly against such a conclusion. The appellant disregarded material instructions which were given on about five occasions, and Mr Lee's advice. 9 The case which the appellant now asserts becomes even more remote from the case which he pleaded and set out to prove at trial when it moves to a submission, as it did at one point, that the respondents were under a duty to enforce their directions by removing him from the relevant task or, if necessary, sacking him, or threatening to do so, if he did not carry out instructions. In our opinion, such a case was not reasonably open. 10 Accordingly, we are satisfied that the appeal was appropriately dismissed.