CLIFTON BRICKS PTY LTD v GERLACH [2003] NSWCA 257

New South Wales Court of Appeal

CITATION : CLIFTON BRICKS PTY LTD v GERLACH [2003] NSWCA 257 HEARING DATE(S) : 5 September 2003 JUDGMENT DATE : 5 September 2003

JUDGMENT OF : Sheller JA at 1; Santow J at 9; Davies AJA at 10 DECISION : Appeal dismissed with costs.

CATCHWORDS : APPEAL - negligence of employer - causal connection with injury - back injury - congenital condition LEGISLATION CITED : N/A CASES CITED : Purkess v Crittenden (1965) 114 CLR 164 PARTIES : Clifton Bricks Pty Ltd - Appellant Armin Gerlach - Respondent FILE NUMBER(S) : CA 40435/98 COUNSEL : W P Kearns SC - Appellant P R Callaghan SC - Respondent SOLICITORS : Hunt & Hunt - Appellant Gary Robb & Associates - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 6583/97 FILE NUMBER(S) : LOWER COURT Morrison ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40435/98 DC 6583/97

SHELLER JA SANTOW JA DAVIES AJA

Friday, 5 September 2003 CLIFTON BRICKS PTY LIMITED v GERLACH Judgment 1 SHELLER JA: This is an appeal from a decision of Morrison ADCJ in the District Court given on 21 May 1998. One ground of appeal was dealt with separately by this Court and then was taken to the High Court where the decision of this Court was overturned. As a result the other grounds of appeal were referred back to this Court to deal with. 2 The plaintiff, Mr Armin Gerlach, sued the defendant, Clifton Bricks Pty Limited for damages for personal injury arising from his employment in 1983 and 1984. The nub of the plaintiff's complaint was that in late 1983 while so employed the Caterpillar forklift on which he worked as a driver with pneumatic tyres was replaced with a Hyster forklift with solid rubber tyres at the front and a short wheelbase which gave a much rougher ride, especially when driving over fallen bricks which apparently were common on the work site.