In this short and succinct decision the Court of Appeal refused to overturn the trial judge's findings in favour of the plaintiff, who suffered injury after having to push a loaded trolley up a ramp to a cellar door at a hotel.
The plaintiff was an owner driver of a truck contracted to deliver goods to the Carrington Hotel at Katoomba. He had to push a loaded trolley weighing some 25 kg with cartons weighing about 135 kg up a ramp to a cellar door at the hotel.
The ramp, described by the trial judge as being "makeshift", had been constructed by the defendant. It was exposed to the weather and became wet when it rained.
After the plaintiff had completed seven deliveries to the cellar without mishap, he emerged from the cellar door at a walking pace to return to his truck for the next load when he slipped at the top of the ramp and fell heavily on his buttocks.
The plywood had not been painted or treated with an abrasive coating. It had been raining for about 24 hours immediately prior to the accident and there was lay evidence, accepted by the trial judge, that the ramp was slippery when wet.
The plaintiff's expert stated in his report that timber which had been wet for 24 hours or more had a tendency to develop a surface slime and, once the timber was saturated, further rain would create a film on its surface. He concluded that after 24 hours of rain the ramp would be slippery for a person wearing the footwear worn by the plaintiff (hiking boots with rubber soles).
The defendant's expert did not challenge these opinions and conceded in cross-examination that plywood exposed to wet weather for some time could develop a slimy surface and become slippery.
District Court Decision
The trial judge, Quirk DCJ, found for the plaintiff on the basis that he had not failed to take reasonable care for his own safety and that the defendant was in breach of its duty of care in failing to provide safe access to the cellar for persons such as the plaintiff.
Court of Appeal Decision
Handley AJA, who delivered the leading judgment for the unanimous bench, noted that the principal challenges to the judgment by the defendant were directed to the undisputed evidence that this was the first fall that had occurred since the ramp had been covered with the plywood and there had been considerable use of the ramp in the meantime.
In summarily rejecting this submission, Handley AJA found that this evidence, although undisputed, could not in itself be decisive, particularly in view of the evidence that it had been raining for 24 hours before the accident, and the absence of any evidence as to the conditions on earlier occasions when the ramp was used without incident.
His Honour also dismissed a further challenge by the defendant that the trial judge's admission of certain aspects of the plaintiff's expert reports was in error as they contained unsubstantiated assertions. His Honour supported the trial judge's conclusions, finding that the statements were not unsubstantiated assertions but were in fact supported by reasoning in the expert’s report.
His Honour concluded that the trial judge's judgment was supported by both lay and expert evidence which she was entitled to accept.
For the above reasons, the appeal was dismissed with costs.
The decision is another recent example of appellate courts being disinclined to overrule findings of facts made by trial judges.
The decision also affirms the principle in the case of Abalos v Australian Postal Commission (1990) 171 CLR 167, where Justice McHugh stated:
"Where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion."
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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