SIVAKUMAR SHANMUGARATNAM v STRASBURGER ENTERPRISES (PROPERTIES) PTY LTD [2004] NSWCA 229

New South Wales Court of Appeal

CITATION : SIVAKUMAR SHANMUGARATNAM v STRASBURGER ENTERPRISES (PROPERTIES) PTY LTD [2004] NSWCA 229 HEARING DATE(S) : 1 July 2004 JUDGMENT DATE : 1 July 2004

JUDGMENT OF : Mason P at 1; Santow J at 35; Cripps AJA at 36 DECISION : Appeal dismissed with costs.

CATCHWORDS : NEGLIGENCE - injuries sustained in the course of employment - PLEADINGS - whether judge failed to deal with alternative case - whether alternative case properly opened or maintained at trial - whether employer negligently failed to devise or enforce a safe system of garbage disposal. (ND) PARTIES : Sivakumar SHANMUGARATNAM STRASBURGER ENTERPRISES (PROPERTIES) PTY LTD t/a QUIX FOOD STORES FILE NUMBER(S) : CA 40758/03 COUNSEL : Appellant: D E Baran Respondent: J Maconachie QC / N Polin SOLICITORS : Appellant: Buttar Caldwell & Co Respondent: Sparke Helmore

LOWER COURT District Court JURISDICTION : LOWER COURT DC 1249/01 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40758/03

MASON P SANTOW JA CRIPPS AJA

Thursday 1 July 2004

SIVAKUMAR SHANMUGARATNAM v STRASBURGER ENTERPRISES (PROPERTIES) PTY LIMITED TRADING AS QUIX FOOD STORE S

JUDGMENT 1 MASON P: This appeal arises out of proceedings heard in the District Court before Delaney DCJ. In those proceedings, the appellant claimed damages from his employer, the respondent, for injuries sustained in the course of employment. 2 The appellant had been employed by the respondent as a casual cashier and customer service officer since August or September 1998. 3 On 6 November 1998, he attended the respondent's Quix Food Stores premises at Blacktown to work the evening shift running from 11pm to 7am. His usual place of work was the Quix store at Mt Druitt. However, the Blacktown store had been taken over from a private owner and was in the process of being refitted. The store's assistant manager, Mr Alex Vujasinovic, gave evidence that the work was going on virtually twenty-four hours a day. The appellant had been sent to the store to help stock the shelves, clean the rubbish up and generally prepare it for trading. 4 Rubbish from the store was generally disposed of by placing it in a commercial garbage skip or dumpster located outside the store but on the property. During the course of the evening, the skip became full with rubbish protruding above the top rim of the bin. The appellant went and obtained a ladder, placed it on the side of the gate adjacent to the bin, climbed up the ladder and got into the bin. He then began to stamp the rubbish down with one foot on the rim of the bin and the other inside the bin. He said that whilst doing this, at one point the foot on the rim of the bin slipped outside the bin. As he attempted to stand up again and regain his balance, he fell, hitting the concrete ground below. The height from the rim of the bin to the ground was approximately 145 centimetres, the height that the appellant said was about to his neck. He suffered injury to his right arm and wrist. 5 The respondent did not dispute that it had owed the appellant a duty of care in the circumstances. However it disputed that there had been any breach of the relevant duty. There was also a dispute as to the extent of the disability stemming from the initial injury. 6 The appellant's case was that he had been specifically directed to get into the bin and stamp the rubbish by Mr Vujasinovic. He also gave evidence that Mr Vujasinovic was having a smoke near the driveway when he climbed up into the bin, the implication being that he would have observed what was happening and implicitly acquiesced in it. The appellant was challenged as to this instruction and as to the presence of Mr Vujasinovic. Mr Vujasinovic did not contest that the appellant had been asked to dispose of rubbish or that the skip had become full that night. However he denied that at any stage during the night he had given a specific direction to the appellant to climb into the skip or stamp down the rubbish. He also denied that he had been outside observing the appellant at the time the accident took place. 7 A key issue at the trial was the credit of the appellant with respect to both liability and damages. Ultimately, based in large part upon observance of the evidence of both the appellant and Mr Vujasinovic, the trial Judge accepted as truthful the evidence of Mr Vujasinovic and contrasted this with the evidence of the appellant. His Honour said further: I formed the impression that [Mr Vujasinovic] was an honest and straight forward witness, doing the best to recall events of some time ago and willing to concede that he did not recall matters which he did not recall and being firmly responsive to questions about the events of the night which suggested that he had done anything alleged by the plaintiff about giving an instruction to go into the bin or stamp it down. I accept that Mr Vujasinovic never gave him any instruction to either enter the bin or stamp down cardboard in the bin and that he was not present when the appellant did so, nor did he see him take the ladder to the bin.