EAGLE V. SYDNEY & SUBURBAN BLUE METAL QUARRIES LTD. 90/1943

REASONS FOR JUDGMENT.

Delivered at...

on Wh Ayer Ng.

4058 A. HL Prrriven, Aorixe Govr- Prmvt.

IN THE HIGH COURT OF AUSTRALIA

No. 90 of 1943. NEW SOUTH WALES REGISTRY

ON APPEAL from the Supreme Court of New South Wales No. 2009 of 192. BETWEEN NORMAN HAROLD EAGLE (Defendant) Appellant

and

SYDNEY & SUBURBAN BLUE METAL QUARRIES LIMITED

(Plaintiff) Respondent.

Tuesday, 4th April, 194k.

JUDGMENT

LATHAM C.d.: This is an appeal from a Judgment of the Supreme Court of New South Wales refusing an application for a new trial.

A man named Dalloway met his death in circumstances which imposed a liability upon his employer, the Sydney and Suburban Blue Metal Quarries Ltd., under the Workers' Compensation Act. Dalloway was run over and killed by a motor lorry being driven by the appellant Eagle. The Company sued Eagle for an indemnity under the provisions of the Workers' Compensation Act, claiming that the death of Dalloway was due to the negligence of Eagle. A verdict was given for the plaintiff and application was then made for @ new trial on the grounds that there was no evidence of negligence on the part of the defendant Eagle, and that, if there 'were evidence. of negligence, there was other evidence which showed that there was an even balance of probability between the two alternatives of the accident being caused by the negligence of the defendant and, on the other hand; the accident being caused by the negligence of Dalloway.

The onus was on the plaintiff to establish negligence on the part of the defendant. Negligence is not to be presumed. But it was argued for the defendant that the facts were equally

consistent with the accident having been caused by the negligence

of Dalloway.

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Three points relied upon by the plaintiff as supporting its claim that the death of Dalloway was due to the negligence of Eagle arei~