POONAN v FRANK WHIDDON MASONIC HOMES OF NEW SOUTH WALES [1998] NSWCA 172

POONAN v FRANK WHIDDON MASONIC HOMES OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and BEAZLEY JJA 14 May 1998, 25 June 1998 [1998] NSWCA 172

EVIDENCE — role of appellate court where trial Judge does not take proper advantage of hearing evidence

NEGLIGENCE — duty of care owed by employer to employee

The appellant began proceedings against the respondent to recover damages for injuries he suffered in the course of his employment. The appellant's case at trial was that he was not provided with safety footwear and slipped while mowing an area of lawn that sloped and suffered injury.

The trial Judge gave judgment for the respondents and held that if he had found for the appellant he would have found contributory negligence. At trial, liability was a central issue and it was put to the appellant that he had made the whole story up. The trial Judge did not accept the appellant as a witness of truth.

The argument on appeal was that his Honour, having not accepted the appellant as a witness of truth, rejected his claim without giving due consideration to other evidence which suggested the appellant had suffered a fall.

Held:

1. Where a party's evidence is not accepted by a trial Judge, there is a danger that for that reason the party's case, not merely the evidence, is rejected without weighing other evidence which supports it. If the trial Judge's reasons are unsatisfactory or it is unmistakable from the evidence that the trial Judge has not taken proper advantage of hearing the evidence, the matter is at large for the appellate Court: Paterson v Paterson (1953) 89 CLR 212, Mifsud v Campbell (1991) 21 NSWLR 725.

2. There was uncontested evidence which confirmed the appellant's account of the accident. The trial Judge failed to make proper use of the advantage he had in hearing this evidence.