BAZINA v THOMAS COFFEY CONSTRUCTIONS PTY LTD [1989] NSWCA 17

BAZINA v THOMAS COFFEY CONSTRUCTIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES

PRIESTLEY, CLARKE and MEAGHER JJA 20 June 1989, 20 June 1989

[1989] NSWCA 17

Clarke JA The appellant was injured in the early hours of the morning of 11 or 12 January1984 during the course of his employment with the respondent. He was employed at the time as a labourer or assistant welder; having entered his employment with the respondent late in December of the preceding year. At the critical time he was engaged in assisting a welder named Vokaja. He claimed that his injuries resulted from two breaches of duty by his employer. The first was the duty to take reasonable care which is said to arise at common law, and the second was a breach of a statutory duty. The case was heard by Judge Thorley and a jury of four. The jury decided against the appellant on both issues of liability. In other words, it was not satisfied that he had shown the negligence or breach of statutory duty on which he relied

The appellant now challenges that decision, submitting that the verdict was a perverse one or, as it is sometimes put, a verdict such that no reasonable jury properly directed could find on the evidence. It must be said at the outset that it is a rare case in which an appellant can satisfy the onus of showing that a verdict is perverse or otherwise offends in the manner I have suggested, and there is a very heavy onus on the appellant.

The facts are, so far as they were proved in evidence, within a short compass. There were two witnesses only called on the issue of liability. One was the appellant; the other was Mr Vokaja. Both witnesses were called in the appellant's case, the respondent having decided not to adduce any evidence upon the issue of liability.

The broad thrust of the evidence given by Mr Vokaja and the appellant - and I interpose the observation that their evidence was, in broad terms, consistent - was that they were working within a Cyclone wire mesh cage, the floor of which was situated about three metres above floor level, welding a bracket or a fixture to a bracket on the roof of the premises or towards the roof of the premises. In any event the material being welded was situated about two and a half to three metres above the floor of the cage. The actual welding was performed by Mr Vokaja. He was, so the unchallenged evidence disclosed, somewhat taller than the appellant. In order to carry out his task he located a plastic milk crate and stood with his right foot on the inverted crate and his left foot resting against the Cyclone wire wall in some manner that is not clearly disclosed by the evidence. Having reached that position, he grasped the bracket which was above his head with one hand and performed his welding. Having completed that work he then directed the appellant to clean away some slag from the welded joint