BUSTESCU v TRANSFIELD PTY LTD [1994] NSWCA 37

BUSTESCU v TRANSFIELD PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 24 November 1994, 16 December 1994

[1994] NSWCA 37

NEGLIGENCE — injury of worker — no evidence to support verdict for plaintiff — assessment of evidence — direction to jury by trial judge

At trial the appellant alleged injury in the course of his work when endeavouring to lift a length of steel with a levering device, claiming it to be due to the negligence of the respondent, his employer. The trial judge held that there was no evidence of negligence or that the tool was inappropriate for the work and so directed a verdict for the defendant/respondent. The appellant challenged the verdict. On appeal, the appellant argued that the trial judge applied the wrong test in making his decision; that instead of deciding that there was no evidence upon which a jury could reasonably find for a plaintiff, the trial judge assessed the evidence so as to form a view as to its weight. Accepting that this might have been so, the Court found it necessary to consider the application for itself.

Held:

(per Sheller and Cole JJA) The relevant evidence was that the appellant was using the lever to carry out the task for which he was employed when the accident happened. There was no other evidence to support the appellant's allegation that the respondent was negligent. To succeed the appellant had to prove that common knowledge would enable the jury to perceive the existence of a real risk of injury and permit the jury to say what reasonable and appropriate precautions might appropriately be taken to avoid it. There was no evidence of any established practice or any other appropriate and available method of turning the angle iron which would have eliminated or minimised the risk.

The evidence provided the jury with no basis for determining the magnitude of the risk or the degree of the probability of its occurrence or how it might be eliminated or minimised. Thus there was no evidence upon which a jury could reasonably find for the appellant.