New South Wales Court of Appeal CITATION : Perth Freightlines P/L v Peter Chapman [2003] NSWCA 35 HEARING DATE(S) : 25/02/03 JUDGMENT DATE : 5 March 2003 JUDGMENT OF : Meagher JA at 1; Beazley JA at 15; Cripps AJA at 16 DECISION : Appeal dismissed with costs. CATCHWORDS : Trial Judge's findings of fact - review by appellate Court - competing accounts of incident. Perth Freightlines Pty Limited ACN 005 762 685 PARTIES : v Peter Chapman FILE NUMBER(S) : CA 40423 of 2002 COUNSEL : A: J D Hislop QC & J Sharpe R: K P Rewell SC & J Gracie SOLICITORS : A: PricewaterhouseCoopers Legal R: Firths Solicitors LOWER COURT District Court JURISDICTION : LOWER COURT 10483 of 2001 FILE NUMBER(S) : LOWER COURT Andrew J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40423 of 2002 MEAGHER JA BEAZLEY JA CRIPPS AJA Wednesday, 5 March 2003 PERTH FREIGHTLINES PTY LIMITED v CHAPMAN FACTS The respondent operated an interstate truck driving business. He contracted with the appellant company to deliver a truckload of freight to the appellant's depot in Perth. The respondent was assisted in the unloading of freight from his truck by an employee of the appellant. In order to unload some cartons from his truck, the respondent stood on a crate, upon which rested a carton that he straddled with his legs. The respondent alleged that, while reaching up to obtain a carton above head-height, the appellant's employee removed the carton (which rested on the crate) from between the respondent's legs. This action caused the respondent's right leg to be moved, and as a consequence, caused him to miss his footing on the crate and fall off the truck onto the ground below. In proceedings brought in the District Court, a judgment and verdict were entered in favour of the respondent (the plaintiff below). It is from this judgment that the appellant has appealed. HELD i. It was the trial judge's duty (faced as he was by competing accounts of the accident) to decide whether, on a balance of probabilities, the respondent's version was true. He found that it was. Moreover, it became an inevitable decision once the appellant's only witness became unable to adhere to the version of the events contended for by the appellant. ORDERS i. That the appeal be dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40423 of 2002 MEAGHER JA BEAZLEY JA CRIPPS AJA Wednesday, 5 March 2003 PERTH FREIGHTLINES PTY LIMITED v CHAPMAN Judgment 1 MEAGHER JA: The appellant Perth Freightlines Pty Limited, is appealing against a judgment and verdict given by his Honour Judge Andrew in the District Court in favour of the plaintiff, the current respondent Mr Peter Chapman. 2 Mr Chapman operated an interstate truck driving business. He contracted with the appellant to deliver a truckload of freight to the appellant's Perth depot on 4 July 1998. Mr Chapman was assisted in the unloading of freight from his truck by a Mr Christopher Gale, an employee of the appellant. 3 Messrs Chapman and Gale were unloading cartons in a confined space on the trailer of Chapman's truck. Cartons were stacked on the truck, such that cartons for one particular destination were together, and they were unloaded together. The cartons were stacked above head height. They were in close proximity to each other. 4 Mr Chapman was standing on a crate, approximately 1 metre square and 1 metre high. There was a carton on the crate, between Chapman's legs. According to Chapman, he was reaching up to obtain a carton from the top of the stack on the truck when Gale removed the carton from between his legs. In so doing he moved Chapman's right leg, which was in the air. As he brought his right foot down it missed the crate on which he had been standing and Chapman fell from the truck to the ground below. That is his story, and he never deviated from it. 5 Mr Gale's story is somewhat different. 6 He said that he picked up a carton and was turning around to put it on the pallet being stacked, when he saw Mr Chapman turning around with a carton and he saw Mr Chapman's left foot slip off the side of the trailer (although he does not ascribe any cause to this slipping). He denied that Mr Chapman had been standing on a crate or that he removed a carton from between Mr Chapman's legs, or that he moved Mr Chapman's leg. 7 When I say that was Mr Gale's story, what I mean is that it was his principal story. When cross-examined he committed himself to many variants of it. Thus he said he "didn't see what he (scil. Mr Chapman) was doing" and also that he saw the accident. As to Mr Chapman standing on a crate, he said that he was not; also, that he was not sure whether Mr Chapman was standing on a crate or not; and also that Mr Chapman possibly was standing on a crate. 8 There was yet another version of the accident, which may be gleaned from the ambulance or hospital records: according to these records, the accident was caused by a forklift. This version of the facts was embraced by neither the plaintiff nor the defendant, and may be dismissed out of hand. 9 There has never been any suggestion that if Mr Chapman's version of events be correct the appellant was not liable in negligence to him. Nor has there ever been any suggestion that the significant award of damages was inappropriate. 10 The judge's duty, therefore, was to decide whether, on a balance of probabilities, Mr Chapman's version was true. He found it was. Far from involving any misuse of his position, as was urged by Mr Hislop QC, learned senior counsel for the appellant, it seems to me that his Honour's decision was not only within the evidence but was practically inevitable once Mr Gale, the appellant's only witness, could not adhere to the version of the events in question. 11 His Honour's judgment was the subject of a sustained attack by Mr Hislop. He drew our attention, for example, to the following passage: "It is the plaintiff's evidence that he was familiar with the defendant's system of unloading trucks, and that is that he was required to assist in unloading. He says that on this day upon arrival at the depot he took the tarpaulins and lines off the truck and then moved to the unloading area where the gates of the truck were taken off by a forklift vehicle; this was driven by Mr Gale. The forklift had an empty pallet which was placed level with the tray of the truck and he and Mr Gale then placed cartons from the truck onto the pallet." In this passage his Honour attributes to Mr Chapman evidence which was in fact given by Mr Gale. Mr Rewell SC, learned senior counsel for the respondent, admitted that Mr Hislop's criticism was well-founded. However, as he pointed out, it was also irrelevant, in that it had nothing to do with the accident which befell Mr Chapman. 12 Some of Mr Hislop's other criticisms of his Honour's judgment seem to me to be simply ill-founded. I shall not examine them all vicissim, but will simply take one example. In his reasons for judgment his Honour said: "He [scil. Mr Gale] agreed that the cartons were stacked about 10 foot high [scil. On the lorry]." In fact, he did not. His evidence has them stacked on the lorry to a height of about 8 feet, and on the pallet to about 10 feet. But, as Mr Russell pointed out, if Mr Chapman, who is nearly 6 feet tall, had to stand on a box which was more than a foot high to reach the top cartons, they must have been stacked to a height of at least 10 feet. 13 There is no point in pursuing the factual minutiae any further. 14 The appeal should be dismissed with costs. 15 BEAZLEY JA: I agree with Meagher JA. 16 CRIPPS AJA: I agree with Meagher JA. ******* Last Modified: 03/06/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.