Madden v Kingston Industries [2005] NSWCA 440

New South Wales Court of Appeal

Madden v Kingston Industries [2005] NSWCA 440 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20 September 2005

JUDGMENT DATE: 13 December 2005

JUDGMENT OF: Handley JA at 1; Basten JA at 2; Young CJ in Eq at 35

DECISION: (1) Appeal allowed; (2) Set aside the judgment and orders of the District Court in favour of the Respondent; (3) Remit the matter to the District Court for retrial; (4) Order the costs of the first trial to abide the order of the judge presiding at the second trial; (5) Order the Respondent to pay the Appellant's costs of the appeal; (6) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified

CATCHWORDS: NEGLIGENCE - employee injured his back when he emptied water from wheelbarrow - whether employer breached its duty of care to provide a safe system of work - proceedings involved two causes of action - cumulative effect of strenuous effort over a period of weeks and failure to train employee in proper use of wheelbarrow - employer failed to consider reasonable steps which could have been taken to remove or minimise forseeable risks of injury - whether retrial should be refused on the basis that even if total claim divided equally between the two causes of action, the appellant would not reach the threshold in s151G(4) of the Workers Compensation Act 1987 (NSW) or that neither cause of action caused injury greater than 17% of a most extreme case.

LEGISLATION CITED: Workers Compensation Act 1987 (NSW)

Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228 CASES CITED: Woolage v State of New South Wales [2001] NSWCA 256