Gomes v Metroform Pty Limited [2005] NSWCA 171

New South Wales Court of Appeal

CITATION: Gomes v Metroform Pty Limited [2005] NSWCA 171

HEARING DATE(S): 16 March 2005

JUDGMENT DATE: 18 May 2005

JUDGMENT OF: Beazley JA at 1; Santow JA at 2; Campbell AJA at 64

DECISION: (1) That this appeal be allowed and the judgment below set aside. ; (2) In lieu thereof, verdict and judgment for the appellant. ; (3) The parties to bring in Short Minutes of Order as to the amount of damages, in accordance with the trial judge's assessment of damages together with interest in accordance with the District Court Rules. ; (4) The respondent to pay the appellant's costs of the appeal and at first instance.

CATCHWORDS: TORT - negligence of employer in failing to have a proper or adequate system of work for workplace injury to back suffered in handling and moving heavy frames when they became misaligned - circumstances included unwillingness to provide additional assistance and urgency of work - no known susceptibility to back injury - employer liable to employee.

Andar Transport Pty Ltd v Brambles Ltd (2004) 78 ALJR 907 Boyded Industries P/L v Canuto [2004] NSWCA 256 Czatyrko v Edith Cowan University [2005] HCA 14 (6 April 2005 unreported) McLean v Tedman (1984) 155 CLR 306 CASES CITED: Wyong Shire Council v Shirt (1980) 146 CLR 40 Swain v Waverley Municipal Council (2005) ALJR 565 Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19 (21 April 2005, unreported) Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204

Agostino GOMES (Appellant) PARTIES: METROFORM PTY LIMITED (Respondent)

FILE NUMBER(S): CA 41018/03

M I BOZIC, SC/ R L INGRAM (Appellant) COUNSEL: D A PRIESTLEY (Respondent)