MINKARA v PIRELLI CABLES AUSTRALIA LTD [1998] NSWCA 145

MINKARA v PIRELLI CABLES AUSTRALIA LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMMON LAW DIVISION

MASON P, PRIESTLEY and BEAZLEY JJA 20 November 1998, 23 December 1998

[1998] NSWCA 145

Negligence — proof of — workplace injury — plaintiff's version of accident not accepted — alternative versions of accident properly rejected — principle in Jones v Dunkel not applicable — no error demonstrated in reasoning of trial judge

Mason P The appellant suffered injury on 30 October 1979 in his employment with the respondent. He later obtained an award of workers' compensation, apparently by consent (cf AB 23). Nine years after the injury he commenced proceedings for damages which came to trial in 1996. McInerney J entered a verdict for the defendant because he was not satisfied that negligence had been established. This appeal challenges that verdict on various grounds.

Difficulties in this appeal

The learned judge found this to be a difficult case to determine, for several reasons. First, there were the inevitable difficulties associated with the vast amount of time that had elapsed between the injury and the trial.

Secondly, there were language difficulties. The respondent had migrated to Australia from Lebanon in 1973 when he was aged 18. English was not his first language, nor was it the first language of his only lay witness Mr Ahmed Mich. The trial proceeded without interpreters. In his judgment McInerney J remarked upon the two men's imperfect knowledge of English, stating that this meant that "it has been extremely difficult to understand precisely what occurred on the day'. I shall return to this matter in the context of a specific ground of appeal suggesting denial of procedural fairness. But it is also of general relevance, because it suggests the need to consider sympathetically possible ambiguities in the evidence given by the two men.