A.F. LITTLE PTY. LIMITED V. BIRKETT

He

IN THE

~AsEs LITTLE. PTY LIMITED

Judgment delivered at... SY¥AMCY...

W. Mt. Houstow, Govt. Print., Melb. on Wednesday,25th.July..1962....

©4978/55

A. F. LITTLE PTY. LTD.

Appeal dismissed with costs.

A. F, LITTIE PTY. LIMITED

ve

BIRKETT

JUDGMENT DIXON C.J.

A. F, LITTLE PTY, LIMITED Ve

BIRKETT

In my opinion this appeal should be dismissed. It is an appeal from a rule or order of the Supreme Court of New South Wales dismissing an appeal by the defendant from a jury's verdict for the plaintiff. By the verdict the plaintiff recovered £25,000 damages from the defendant. The verdict was founded on the first and fourth counts of a declaration complaining of personal injuries caused to the plaintiff as the defendant's servant.

In the first count the cause was alleged to be the negligence of the defendant: in the fourth count breach of statutory duty. I think that the second count may be put aside: for the facts make a somewhat stronger case in favour of the plaintiff on the first count. But at the same time not even a close scrutiny of the evidence leaves one with a satisfactory explanation of the precise manner in which the jury considered that the accident occurred. Nothing is to be gained by a renewed discussion of the evidence. I have had the advantage of reading the reasons of Owen J. with whom on this part of the case I agree. All I shall say is that the evidentiary materials do seem to have been fairly open to the view that the plaintiff was crossing from one part of the structure to another by the use of the tom heads, that he crossed a transverse beam and slipped and in an attempt to save himself clutched a profile stick, which broke. It was at all events possible for the jury to adopt some such view, and there were other views of the same sort putting the plaintiff's slip or failure in foothold further forward in his progress. It was possible for the jury to hold that inadequate protective equipment was in position and that planks and