Mungis (No 2) Pty Limited v Still [2011] NSWCA 261

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mungis (No 2) Pty Limited v Still [2011] NSWCA 261 Hearing dates: 5 August 2011 Decision date: 06 September 2011 Before: Basten JA at 1; Macfarlan JA at 2, Sackville AJA at 3. Decision: 1. Appeal dismissed. 2. Cross-appeal dismissed. 3. The appellant pay the respondent's costs of the appeal. 4. The respondent (cross-appellant) pay the appellant's (cross-respondent's) costs of the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: NEGLIGENCE - safe system of work at factory - contract worker injured when compartment door of plastic thermoforming machine springs open under pressure - power to spindle inadvertently left on by worker thereby creating pressure on door - whether occupier breaches duty by failing to install an automatic switch shutting off power - whether occupier breaches duty by failing to instruct worker to use emergency buttons.

CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence by failing to turn machine off before opening compartment - whether primary Judge's apportionment of responsibility should be disturbed. Legislation Cited: Civil Liability Act 2002 Cases Cited: Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263, 53 MVR 502 McLean v Tedman [1984] HCA 60; 155 CLR 306 Shaw v Thomas [2010] NSWCA 169; [2010] Aust Tort Rep 82-065 Mobbs v Kain [2009]\ NSWCA 301; 54 MVR 179 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Category: Principal judgment Parties: Mungis (No 2) Pty Limited (in liquidation) (Appellant) Robert Leslie Still (Respondent) Representation: Mr J Sexton SC and Mr H Chiu (Appellant) Mr M Thompson (Respondent) Thompson Cooper Lawyers (Appellant) Gerard Malouf & Partners, Solicitors (Respondent) File Number(s): 2009/334577 Decision under appeal Date of Decision: 2010-07-21 00:00:00 Before: C Armitage DCJ File Number(s): 2009/00334577