BERKELEY CHALLENGE PTY LTD v ROCHFORD [1998] NSWCA 37

BERKELEY CHALLENGE PTY LTD v ROCHFORD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA, POWELL JA and FITZGERALD AJA 7 September, 8 October 1998

[1998] NSWCA 37

WORKER'S compensation action — failure by trial judge to provide reasons for accepting one version of events rather than another conflicting version — inconsistent findings by trial judge — miscarriage of trial — new trial on all issues.

Meagher JA. I have read in draft the judgment of Fitzgerald AJA and have the misfortune to disagree with it.

The facts, insofar as they are ever knowable in a case like this, are set out in that judgement.

The plaintiff's story is that (a) the machine stopped, (b) she then restarted it, and (c) it hit her; on some of her accounts, step (b) was omitted. But, on any view, there was both a stopping and a collision. That, relevantly, coupled with her evidence about previous complaints, isall she needed to prove to make out a case of negligence. She had formidable difficulties in her path: she was not particularly articulate, and obviously wholly ignorant of science; and, in addition, there were five or six witnesses against her who gave entirely inconsistent evidence.

His Honour had to make some finding of fact as to what happened. He found her story true, and consequently that the evidence to the contrary was not true. Despite the infelicities of his Honour's language, I do not think he decided her credibility initially, in abstracto, as it were, and then turned to each of the other witnesses, disbelieving them in turn only in the light of his initial finding. I see no reason to doubt that his Honour only made his initial finding as to the plaintiff's credibility after he had considered the whole of the evidence, thus presenting the Court with a set of factual findings which are impregnable.