Westco Distributors v Hickey's Transport & 1 Ors [2006] NSWCA 24

New South Wales Court of Appeal

CITATION: Westco Distributors v Hickey's Transport & 1 Ors [2006] NSWCA 24

HEARING DATE(S): 8 December 2005

JUDGMENT DATE: 21 February 2006

JUDGMENT OF: Mason P at 1; Santow JA at 2; Tobias JA at 53

DECISION: (1) The appeal be upheld. ; (2) The judgment and orders of Twigg ADCJ be set aside accordingly and in lieu thereof there be substituted a verdict for the appellant/first defendant/cross-defendant. ; 3) The first and second respondents to pay the appellant's costs of the proceedings below and of the appeal but grant to the first and second respondents a certificate under the Suitors' Fund Act, if otherwise qualified.

CATCHWORDS: NEGLIGENCE – liability – Employee suffered back injury manoeuvring heavy pallets on the back of truck - Claim against contractor/ occupier of premises (claim against employer settled) – Whether reasonable to expect contractor/occupier would not create situation for unloading that might foreseeably pose risk of injury and would assist in that unloading notwithstanding that no request was made by the injured plaintiff to do so – causation – whether award of damages excessive.

WESTCO DISTRIBUTORS PTY LIMITED (formerly known as WESTERN CONFECTIONARY PTY LIMITED) (ACN 000 641 949) (Appellant) PARTIES: HICKEY'S TRANSPORT PTY LIMITED (ACN 001 802 400) (First Respondent) Patrick LYNCH (Second Respondent)

FILE NUMBER(S): CA 41127/04

I G HARRISON, SC/ L V GYLES (Appellant) COUNSEL: L T GREY (First Respondent) M MAXWELL (Second Respondent)

A R Connolly & Company (Appellant) SOLICITORS: Vardanega Roberts (First Respondent) Brydens Law Office (Second Respondent)