Felk Industries Pty Ltd v Mallet & Anor [2005] NSWCA 111

New South Wales Court of Appeal

CITATION: Felk Industries Pty Ltd v Mallet & Anor [2005] NSWCA 111

HEARING DATE(S): 13/04/2005

JUDGMENT DATE: 28 April 2005

JUDGMENT OF: Sheller JA at 1; Campbell AJA at 2; Hunt AJA at 3

DECISION: 1. The judgment entered in the District Court is amended: (i) by substituting for the amount of $251,235.20 (as the amount the first defendant, as the plaintiff's employer, was ordered to pay to the plaintiff) the amount of $314,044.01; and (ii) by substituting for the amount of $71,711.20 (as the amount the second defendant, as the occupier, was ordered to pay to the plaintiff) the amount of $322,946.41. 2. The appeal by the second defendant is allowed, the judgment entered against it in favour of the plaintiff is set aside; in lieu thereof, judgment is directed to be entered for the second defendant on the plaintiff's claim. 3. As to the costs in both the trial and the appeal - (i) the plaintiff is to pay the costs of the second defendant (and, if eligible, he is to have a certificate under the Suitors Fund Act 1951); and (ii) the first defendant is to pay the plaintiff's costs (such costs to include the costs of the second defendant which the plaintiff has been ordered to pay). 4. The cross-claim by each defendant against the other defendant for indemnity or contribution is dismissed with costs. 5. The cross-appeal by the plaintiff against the first defendant is dismissed with no order as to costs.

CATCHWORDS: Employee of subcontractor injured in course of performing specialised services in premises of third party - sues both employer and occupier - trial judge finds both responsible - duty of occupier to such entrant injured when impeded by readily visible obstruction - occupier not liable - lifting injury caused only by employee undertaking a procedure which, unknown to him through negligence of employer, involved a risk of injury to himself - whether "Bullock" order appropriate in favour of plaintiff.