BELOVUKOVIC v AUSTRALIAN TELECOMMUNICATIONS COMMISSION [1988] NSWCA 15

BELOVUKOVIC vy AUSTRALIAN TELECOMMUNICATIONS COMMISSION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, MCHUGH and CLARKE JA 26 August 1988, 26 August 1988 [1988] NSWCA 15

APPEAL — Verdict for defendant against the evidence and weight of evidence — incident to the plaintiff admitted — jury not bound to accept plaintiff's evidence as to date or manner of injury — not unreasonable for jury to hold plaintiff's account not prove negligence. NEGLIGENCE — Proximity — standard of care — special relationship — uncertificated crane driver — Cook v Cook (1986) 162 CLR 376 applied. ORDER Appeal dismissed with costs.

McHugh JA This is an appeal by a plaintiff against a verdict for the defendantin an action for damages for personal injuries. The action was heard by Maxwell J and a jury of four. The principal ground of appeal is that the verdict was against the evidence and the weight of the evidence. As Mr Hudson conceded in his argument, this requires a finding by this Court that upon the evidence the verdict of the jury was perverse. As was said by Lord Wright in the House of Lords in Mechanical and General Inventions Co Ltd v Austin [1935] AC 346 at 375, the test is not whether the verdict was right but whether the jury failed to perform its duty. In this particular case, however, the evidence adduced by the appellant stops very short of enabling the Court to say that the jury failed to perform its duty.

The facts of the case, insofar as the appellant relies upon them, are carefully set out in the written submissions of the appellant and I gratefully adopt them.

"The Plaintiff stated in evidence that he was assisting another employee of the Defendant to load a winch machine on to a motor truck of which the Plaintiff was the driver when he sustained his injury. The Plaintiff said that his foreman at the Emu Plains Depot ordered him to go to the Seven Hills Depot of the Defendant to pick up the winch machine and to bring it back to Emu Plains. The Plaintiff drove his truck to Seven Hills. There he spoke to the supervisor, Angelo. Angelo directed the Plaintiff to go to the Lidcombe Depot to pick up the machine but at Lidcombe the Plaintiff was told to proceed to Villawood. At Villawood there was a gatekeeper, one Johnson and no other employee at the time of the Plaintiff's visit. The Plaintiff had brought with him a docket from his foreman and he obtained Johnson's signature on the docket. This docket was given to his foreman on the return of the Plaintiff to Emu Plains and Johnson received a duplicate of the docket. Johnson showed the Plaintiff where to pick up the winch machine and the Plaintiff went to where the winch machine was situated to await the arrival of the crane driver who was apparently at lunch. The Plaintiff waited at the machine for 1 hour between 1.30 pm and 2.30 pm except for returning to see Johnson on 3 occasions. On the third occasion the Plaintiff volunteered to use the crane, but Johnson said that he would operate it. The truck was then placed in position by the Plaintiff about 8 feet from the winch because he could not get closer due to "machinery like scrap" preventing it taking up its position closer to the winch. The crane was placed to the rear of the truck and the parts to be loaded