Schofield v. Davkom Pty. Ltd. (t/as John Phillips Plumbing) [2003] NSWCA 358

New South Wales Court of Appeal

CITATION : Schofield v. Davkom Pty. Ltd. (t/as John Phillips Plumbing) [2003] NSWCA 358 HEARING DATE(S) : 27 November 2003 JUDGMENT DATE : 27 November 2003

JUDGMENT OF : Handley JA at 1, 29, 31; Hodgson JA at 2; McColl JA at 30 DECISION : Appeal dismissed with costs.

CATCHWORDS : TORTS - NEGLIGENCE - Verdict for defendant employer - Whether appealable error shown. PARTIES : Gregory David Schofield - appellant Davkom Pty. Limited (trading as John Phillips Plumbing) - respondent FILE NUMBER(S) : CA 40256/03 COUNSEL : Mr. J.D. Hislop QC with Mr. T. McKenzie for appellant Mr. G.R. Graham for respondent SOLICITORS : Enrights Solicitors, Maitland for appellant Sparke Helmore, Newcastle for respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 165/01 FILE NUMBER(S) : LOWER COURT Colin O'Connor DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40256/03 DC 165/01

HANDLEY JA HODGSON JA McCOLL JA

Thursday 27 November 2003 SCHOFIELD V. DAVKOM PTY. LTD. t/as JOHN PHILLIPS PLUMBING Judgment 1 HANDLEY JA: The Court will refuse the late application for an adjournment to put on fresh or additional evidence and I will ask Hodgson JA to give the first judgment. 2 HODGSON JA: On 16 December 2002, in proceedings brought by the appellant against the respondent for damages for personal injury, O'Connor DCJ entered judgment for the respondent. The appellant appeals to this Court from that decision. 3 The respondent operated a plumbing business in East Maitland and the appellant was employed as a plumber in that business. The appellant's claim was that he sustained a back injury on or about 20 October 2000 in the course of his employment whilst lifting a drain cleaning machine known as an eel from the back of a truck. The agreed weight of this machine was 61.3 kilograms. 4 In evidence before the primary judge, the appellant accepted that there was a normal method for unloading the machine from a truck, and the primary judge found that this method was comparatively easy, not involving any undue effort and not requiring the assistance of a further employee. However, the appellant sought to make out a case that this method was not used on the occasion of his injury because the topography at the customer's property to which he had been sent was such as to prevent this method being used. His claim against the respondent was to the effect that he had been placed in circumstances where he was required to unload the machine alone, and without being provided with a safe means of doing so. 5 The appellant's evidence was that on 20 October 2000 he went to a job in East Maitland where the injury occurred, and that the topography there was such that he could not use the usual method because of "the descent and grade of the actual land itself". The appellant said he later went with an expert, who gave evidence for him at the trial, to the site in question in George Street, East Maitland, this being identified in the expert's report and otherwise at the trial as 5 George Street; and the expert's evidence was based on the assumption that the injury occurred at this site. 6 However, there was before the primary judge the following evidence which the primary judge accepted. 7 First, there were records of the respondent showing that the only work done around the time of the injury at 5 George Street was on 6 October 2000 and did not involve the use of an eel. 8 Second, there were records of the defendant showing that on 20 October 2000 the only job done by the appellant requiring the use of an eel was at an address 7 Tabor Street, Rutherford, and there was evidence that the ground at this area was level. 9 Next, the workers compensation claim form completed by the appellant was not completed by him until 13 November 2000. This form reported an injury occurring on 20 October 2000 on a site in East Maitland, and described the injury occurring as follows, "lifting eel and turned, felt a pop in top of back leg (bottom)." 10 Next, there was evidence from the persons to one of whom the appellant claimed to have reported his injury on the day it occurred. One of these persons said she recalled a conversation in which the appellant said he had injured his leg and that he did not know how he did it; and this witness also said that it was not until two or three weeks later that the appellant claimed to have injured his back lifting the eel. The other person gave evidence that she was not at work between 18 and 25 October, and could not remember the appellant telling her about the injury. However, it was this employee who completed the employer's report of the accident on 15 November 2000 which repeated the information which the appellant had put in his workers compensation claim on 13 November. 11 Next, the respondent's register of injuries did not refer to the injury to the appellant prior to an entry made on about 13 October 2000. 12 As I have said, the primary judge accepted all that evidence, and there is no challenge on appeal to the primary judge's acceptance of that evidence and no basis suggested for any such challenge. 13 The primary judge was not satisfied that the injury occurred at 5 George Street. He found that if the injury occurred at the Rutherford address, the topography had nothing to do with the accident; and he also found that no other particular location had been suggested where the accident may have occurred. He considered a submission to the effect that he should accept that the appellant was injured at work at some other address; but he said there was no evidence of the topography of any unidentified area where the accident may have occurred, and he was not satisfied that the injury occurred in circumstances involving a breach of the respondent's duty of care. 14 He also considered a submission that there was an admission or estoppel by acceptance of the workers compensation claim and payment of workers compensation benefits, but considered that this did not advance the case for common law negligence. 15 The appellant relies on the following grounds of appeal: 1. His Honour erred in finding that the Defendant did not breach its duty of care to the Plaintiff.