Monzer Awad v Diamond Marble Granite Pty Limited [2012] NSWDC 89

District Court New South Wales

Medium Neutral Citation: Monzer Awad v Diamond Marble Granite Pty Limited [2012] NSWDC 89 Hearing dates: 29 May 2012, 30 May 2012, 31 May 2012 and 7 June 2012 Decision date: 21 June 2012 Jurisdiction: Civil Before: Judge P G Mahony SC Decision: Verdict and Judgment for the Plaintiff Catchwords: Personal injuries; burden of proof. Legislation Cited: Civil Liability Act 2002 Cases Cited: Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1WLR 948 Guest v The Nominal Defendant [2006] NSWCA 77 Jones v Dunkel 1959 101 CLR 298 Bradshaw v McEwans Pty Limited (Unreported delivered 27 April 1951) Holloway v McFeeters (1956) 94 CLR 470 Luxton v Vines (1952) 85 CLR 352 at 359-360 Jackson v Lithgow City Council [2008] NSWCA 312 Mason v Demasi [2009] NSWCA 227 at [2] Category: Principal judgment Parties: Monzer Awad - Plaintiff Diamond Marble Granite Pty Limited - Defendant Representation: G Hickey - Plaintiff D Miller SC - Defendant Slater & Gordon - Plaintiff Moray & Agnes - Defendant File Number(s): 10/245572 Publication restriction: None

Judgment

Plaintiff's Claim 1The plaintiff claims damages for personal injuries suffered by him on 25 July 2007 on premises at 12 Ilna Street, Condell Park, NSW, at which the defendant operated a business selling marble and granite which it processed to customers' specifications. 2The plaintiff claims that he visited those premises in circumstances described in paragraph 5 below, and was standing next to a truck laden with granite slabs that was being unloaded by a forklift using a clamp for the purpose of lifting the individual slabs of granite from the back of the truck. During the course of this unloading process, a sheet of granite became dislodged from the clamp and fell, striking the plaintiff on his left side and pinning him against granite that was stored within the factory premises. He suffered a crush injury to his left forearm. 3By an Amended Defence filed with leave on the second day of the hearing, the defendant denied that it was negligent (and in the alternative alleges contributory negligence), but further pleads a denial that the plaintiff suffered an injury at the defendant's premises as alleged at all, and has pleaded that, to the extent that the plaintiff alleges injury in the circumstances described above, such allegations are false and fraudulent, and thus the claim brought by the plaintiff is a fraudulent claim.