Sivakumar Shanmugaratnam v Strasburger Enterprises (Properties) Pty Ltd

[2004] NSWCA 229

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort Law
2. › Negligence
3. › Employer's liability
4. › Safe system of work
5. › Whether employer negligently failed to devise or enforce safe system of garbage disposal
6. › Whether employer required to give explicit warning against obvious risk
1. Practice and Procedure
2. › Pleadings
3. › Alternative case on appeal
4. › Whether alternative case properly opened or maintained at trial
5. › Whether appellant entitled to press alternative case not addressed in trial judge's reasons
1. Appeal
2. › Appeal by way of rehearing
3. › New arguments on appeal
4. › Whether party may advance case not run below
5. › Coulton v Holcombe (1986) 162 CLR 1

Quick Take

An employee who confines their case at trial to a specific allegation (here, that they were directed to perform a dangerous task) cannot on appeal press an alternative negligence case (failure to warn against the task) that was not properly opened or maintained at trial. Where a risk is obvious and the employee had experience with safe alternative practices, the employer's failure to give an explicit warning against the dangerous conduct does not constitute breach of duty.