Wicks v Electrotechnology Industry Group Training Company Limited & ors [2004] NSWSC 677

New South Wales Supreme Court

CITATION : Wicks v Electrotechnology Industry Group Training Company Limited & ors [2004] NSWSC 677 HEARING DATE(S) : 17/05/2004, 18/05/2004, 19/05/2004, 20/05/2004, 21/05/2004, 24/05/2004, 25/05/2004, 26/05/2004, 27/05/2004, 28/05/2004. JUDGMENT DATE : 30 July 2004

JUDGMENT OF : Hislop J DECISION : Judgment with costs for the first and second defendants; Judgment with costs for cross defendants on cross claims.

CATCHWORDS : Tort - Negligence - Employer's liability - Factual dispute as to liability. LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 Brendan John Wicks - Plaintiff PARTIES : Electrotechnology Industry Group Training Company Limited - First Defendant Cold Rae Pty Limited - Second Defendant Christopher Kapetanellis - Cross Defendant FILE NUMBER(S) : SC 20418/02 Mr J Gormly SC with Mr W B Nicholson - Plaintiff COUNSEL : Mr N Polin - First Defendant Mr I G Harrison - Second Defendant Mr D J Cochrane with Mr C C Dwyer - Cross Defendant. Mr G Whiffin (Turner Freeman) - Plaintiff SOLICITORS : Mr S Cameron (Hicksons) - First Defendant Mr G Covington (Henry Davis York) - Second Defendant Ms D Moscardo (Photios Vouroudis & Co) - Cross Defendant.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HISLOP J

30 July 2004

20418/02 Brendan John Wicks v The Electrotechnology Industry Group Training Company Ltd & anor

JUDGMENT 1 HISLOP J: In 1998 the plaintiff (date of birth: 31 October 1978) was a fourth year apprentice refrigeration mechanic. He was employed by the first defendant. The nature of this employment was described by a director of the first defendant in the following terms: "It's a group apprenticeship company, which is a company that takes on – employs apprentices and finds host employers, sends them out to host employers to be trained in their apprenticeship and fulfil their obligations of their apprenticeship, and on the end of their apprenticeship there is then no obligation, it is purely an apprenticeship scheme. Once they finish their apprenticeship they leave the employ of (the first defendant)". 2 The second defendant was in the business of refrigeration and air conditioning, sales, service and installation. 3 By an agreement or arrangement between the first and second defendants the second defendant agreed to act as host employer of the plaintiff. Pursuant to this arrangement the plaintiff worked, relevantly, from 4 May 1998 for the second defendant. He turned up for work each day with the second defendant at sites nominated by it. The second defendant supplied a van which the plaintiff was able to keep during the working week. 4 On 1 July 1998 the plaintiff, in the course of such employment, was assisting Mr Kapetanellis, a tradesman refrigeration mechanic, to perform work at a Delifrance store in Park Street Sydney. Mr Kapetanellis was performing the work as a subcontractor to the second defendant. This was the first day the plaintiff had worked at that site. 5 The work, inter alia, required a compressor to be raised from the floor of the Delifrance kitchen and placed on a metal platform above the false ceiling of the kitchen. 6 It is common ground that in the course of this work the compressor was manually lifted from the floor into position above the false ceiling. The plaintiff alleges he was involved in the lifting process and was injured in the course of it. He claims damages in these proceedings from the first and second defendants for such injury which he alleges was caused by their negligence. 7 The first and second defendants have cross-claimed against each other seeking indemnity or contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. The second defendant has cross-claimed against Mr Kapetanellis seeking damages in tort and/or contract and indemnity or contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. 8 The defendants and Mr Kapetanellis have denied liability. They submit: (a) The lift was not performed in the manner attested to by the plaintiff; (b) No injury was sustained by the plaintiff in the course of the lift; (c) If injury was sustained by the plaintiff in the course of the lift it was not caused by negligence on the part of the defendants or Mr Kapetanellis. 9 Mr Kapetanellis had taken measurements at the Delifrance store for the purposes of the hearing. He gave evidence of those measurements. The plaintiff essentially neither agreed nor disagreed with them, he not having carried out any measurements himself. He did however agree that the compressor weighed 38 kilograms and that an A-frame ladder was used in the task. 10 I accept Mr Kapetanellis' evidence on these matters and find: (a) The kitchen area was 1.9 metres wide and 2.9 metres long. The height from the floor to the false ceiling was 2.43 metres; (b) There was a square manhole in the false ceiling. It measured 50 centimetres by 50 centimetres. Access to the area between the false and actual ceiling through the manhole was obtained by opening a hinged cover; (c) The metal platform on which the compressor was to be located was 10-15 centimetres above the false ceiling and extended 26 centimetres into the area of the manhole space; (d) An A-frame ladder was used in performing the task. It had five steps on each side with a flat platform at its apex. It had a width at the base of 53-55 centimetres. In the A-frame configuration the ladder was 1.8 metres in height. Its apex was 63 centimetres below the false ceiling when upright and in the A-frame configuration; (e) The compressor was cylindrical. It was 35-37 centimetres high and 22-23 centimetres wide. It weighed 38 kilograms. It had four feet on the base.