Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202

New South Wales Court of Appeal

CITATION: Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202

HEARING DATE(S): 23 May 2005

JUDGMENT DATE: 22 June 2005

JUDGMENT OF: Mason P at 1; Santow JA at 2; Basten JA at 3

DECISION: (1) Appeal allowed and judgment of District Court set aside; (2) In place of the judgment below, (a) enter judgment for the plaintiff against the defendant; and (b) order the defendant to pay the plaintiff's costs; (3) Remit the matter to the District Court for assessment of damages payable to the plaintiff without reduction on account of contributory negligence of the deceased; (4) Order the Respondent to pay the Appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified.

CATCHWORDS: Negligence - employer's duty of care to employee - hazardous task - failure to take reasonable steps to provide safe system of work - failure to provide sufficient instruction in relation to the extent and nature of the hazards involved - Contributory negligence - requirement of some level of understanding of the dangers involved. (ND)

Compensation to Relatives Act 1897 (NSW) LEGISLATION CITED: Factories, Shops and Industries Act 1962

Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Ghunaim v Bart [2004] NSWCA 28 CASES CITED: Nominal Defendant v Roland-Smith [2003] NSWCA 65 Sungravure Pty Ltd v Meani (1963-64) 110 CLR 24

Kumada Suresh (Appellant) PARTIES: Jacon Industries Pty Ltd (Respondent)

FILE NUMBER(S): CA 40100/04

R T McKeand QC, D W Elliott (Appellant) COUNSEL: D J Hooke (Respondent)

W D Hunt & Associates (Appellant) SOLICITORS: Nevill & Edwards (Respondent)