Russon v Ampol Ltd [1999] NSWCA 230

New South Wales Court of Appeal CITATION : Russon v Ampol Ltd [1999] NSWCA 230 FILE NUMBER(S) : CA 40171/98 HEARING DATE(S) : 16 June 1999 JUDGMENT DATE : 9 July 1999

PARTIES : John Sydney Russon Ampol Ltd JUDGMENT OF : Giles JA at 1; Fitzgerald JA at 9; Brownie AJA at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 5092/97 LOWER COURT JUDICIAL OFFICER : George ADCJ

COUNSEL : Appellant - S G Campbell & G Pinkerton Respondent - A P Quinliven SOLICITORS : Appellant - I K Chipchase Respondent - Booth Mather Blackmore CATCHWORDS : NEGLIGENCE - fall from ladder - whether ladder slipped - whether treads dangerously slippery - decision on facts. DECISION : (By majority) Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA40171/98 DC5092/97

GILES JA FITZGERALD JA BROWNIE AJA

Friday 9 July 1999

John Sidney RUSSON v AMPOL LTD

JUDGMENT

1 GILES JA: I have had the advantage of reading the judgments of Fitzgerald JA and Brownie AJA. The issues in this appeal concerning how the appellant came to be injured and the legal responsibility of the respondent are described in the reasons of Brownie AJA. He and Fitzgerald JA differ only as to whether the trial judge's finding that the accident was not caused by the ladder falling can stand. 2 There are, I think, two questions involved. 3 The first question is whether this Court should overturn the finding of the trial judge and find in lieu that the accident was caused by the ladder falling. On the one hand, if Mr Duncan had kicked the ladder down it could not have fallen. On the other hand, the appellant's evidence was that it fell, his almost contemporaneous accident report was that it "slipped downward approx 30 cm", and one view of his statement to Mr Duncan at the time that he had slipped off the ladder "because the problem we had with the ladder", was that his immediate explanation for the accident was that the ladder fell. Although I consider it a near thing, I share the view of Brownie AJA that this Court should not overturn the finding of the trial judge. 4 With respect to Fitzgerald JA, I would not describe the evidence of Mr Duncan's practice of kicking the ladder before putting his weight on it as rather tenuous. It is true that Mr Duncan could not recall doing so on the particular occasion, but that is not surprising if it was a matter of habit. His evidence that it was his invariable practice was strong, justifying the trial judge's statements that he was "quite adamant" and "quite insistent". And it should not be overlooked that the practice was current amongst the relevant employees, attested to by Mr Trew and by the appellant himself. 5 The finding made by the trial judge is not necessarily inconsistent with a contemporaneous belief by the appellant that the ladder fell, and does not necessarily involve fabrication on the part of the appellant, because it is possible that the appellant simply slipped but at the time erroneously attributed his slipping to the ladder falling. Weighing the relevant matters must have involved the impression which the appellant made when giving his evidence of the way in which the accident occurred. Consistently with the principles for which cases such as Devries v Australian National Railways Commission (1993) 177 CLR 472 are conventionally cited, I do not think that this Court should overturn the finding. 6 The second question is whether the trial judge's failure to refer to the accident report and the complaint heard by Mr Duncan vitiates the reasoning as expressed in the judgment. Fitzgerald JA takes this up when he says that the trial judge's rejection of the appellant's account without reference to the matters which supported what the appellant said was erroneous. 7 Again with recognition of his Honour's view, I do not agree. The trial judge does not refer to those matters. But it was not necessary that he refer in terms to everything for and against his finding. He expressly made his finding on the balance of probabilities, and so recognised that there were two available findings, and he can not have been unaware of the accident report. As Brownie AJA observes, the complaint heard by Mr Duncan did not attract much attention at the trial, but it was not clear whether the reference to the problem with the ladder was part of the complaint or an inference by Mr Duncan. The trial judge's reasoning was that the evidence concerning kicking the ladder down weighed more heavily than all else, including the appellant's evidence which he did not suggest represented other than the appellant's genuinely held impression of how the accident occurred. I do not think the trial judge's reasons were inadequate so as to require a new trial. 8 With the foregoing comments, I agree with Brownie AJA and with the orders his Honour proposes. 9 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Brownie AJA. I agree with his Honour except in one critical respect. 10 It was not in dispute that the appellant was injured when descending the ladder, and the central issue in the case was whether, as he claimed, the ladder malfunctioned and the material section fell, or whether his co-worker, Mr Duncan, had kicked the material section down before preceding the appellant down the ladder. 11 The trial judge rejected the appellant's claim that the material section of the ladder fell on the basis of rather tenuous evidence that it was Mr Duncan's invariable practice to kick the ladder before putting his weight on it. However, Mr Duncan could not recall doing so on the occasion when the appellant was injured. 12 On the other hand, the appellant gave evidence of his actual recollection of the material section of the ladder falling under his weight and his evidence was supported by both what Mr Duncan heard when the appellant injured himself and an almost contemporaneous written report of what had occurred by the appellant. 13 Obviously, had the trial judge considered those matters which supported what the appellant said, he might well have accepted the appellant's account. In my opinion, his Honour's rejection of that account without reference to those matters was erroneous. 14 I would allow the appeal with costs and remit the action for retrial. The respondent should have a certificate under the Suitors Fund Act, if qualified.