Conceicao v Visypak Operations Pty Ltd [2008] NSWCA 307

New South Wales Court of Appeal

CITATION: Conceicao v Visypak Operations Pty Ltd [2008] NSWCA 307

HEARING DATE(S): 11/11/08 JUDGMENT OF: Beazley JA at 1,13 & 15; Giles JA at 14; Gyles AJA at 2

EX TEMPORE JUDGMENT DATE: 11 November 2008

(1) Appeal allowed. (2) Set aside the trial judge's award of damages in the sum of $135,765.70. (3) Remit the matter to the District Court for re-hearing on the question of damages. DECISION: (4) Set aside the costs order made by the trial judge and in lieu thereof order that the respondent pay the appellant's costs of trial relating to liability. (5) The costs of the first trial relating to damages shall be in the disposal of the judge conducting the new trial. (6) Grant leave to file the cross-appeal out of time if leave has not previously been granted. (7) The cross-appeal is dismissed. (8) The respondent/cross-appellant is to pay the appellant/ cross-respondent's costs of the appeal and the cross-appeal.

CATCHWORDS: NEGLIGENCE - Employer and Employee - Employee's appeal on damages conceded - System of work requiring workers to dismount unaided from conveyor belt at height of 550 millimetres - Whether safe system of work - Whether risk of ankle injury by contact with angle iron upon dismounting foreseeable - Whether contributory negligence on part of appellant - Cross appeal by employer dismissed

CATEGORY: Principal judgment

Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 CASES CITED: McLean v Tedman (1984) 155 CLR 306 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529; (1985) 59 ALJR 492