ANNAND v WATER ADMINISTRATION MINISTERIAL CORPORATION [1997] NSWCA

ANNAND v WATER ADMINISTRATION MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER, POWELL and STEIN JJA 16 May 1997

[1997] NSWCA

APPEAL — CREDIBILITY

Meagher JA. This is an appeal by an unsuccessful plaintiff from a judgment and verdict of Sinclair DCJ in favour of the defendant, Water Administration Ministerial Corporation. His Honour found that the plaintiff was injured on 3 April 1983 when a detonator exploded in his hand. His Honour held that it was a plain detonator. His Honour also held that the plaintiff found it near a bore hole no 233. Both the plaintiff and the defendant accept the finding. The defendant was carrying out at all relevant time seismic testing in the area and in the process of doing this was using detonators, hence, says the plaintiff, it may be inferred that the defendant is liable for the injury. The difficulty is that the defendant called a number of witnesses the total effect of whose evidence negatived any suggestion that the detonator which injured the plaintiff's hand was either owned by or under the control of the defendant. In particular in this regard his Honour found these facts:

(1) Although the defendant used detonators in its work it has not used plain detonators since 1966, rather, it used electronic detonators;

(2) although it had a stock pile of plain detonators regular stocktakings were made of that pile and the numbers of the detonators remained constant, namely, 409. This was so one month before the accident and also so shortly after the accident;

(3) the bore hole no 233 had nothing to do with the defendant's work;

(4) other people from time to time probably used detonators in the area for example fishermen and the Department of Main Roads.

On these findings a verdict for the defendant was inevitable. Moreover, since the findings are credibility based we cannot disturb them. Mr Joseph for the appellant, recognising the difficulty in front of him put everything he possibly could put. He suggested that there was no evidence to negative the possibility that plain detonators were taken from the stock pile and replaced. The difficulty is that seems to me so unlikely an occurrence, since plain detonators were no longer used, that it is difficult to imagine why anyone would want to replace them. That seems to me a theory which is in the realms of conjecture. Mr Joseph also pointed out, and it is correct, that some witnesses were not called and they could have described the surrounding circumstances more fully.