Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268

New South Wales Court of Appeal

CITATION : Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268 HEARING DATE(S) : 12 September 2003 JUDGMENT DATE : 12 September 2003

JUDGMENT OF : Ipp JA at 26, 28; Young CJ in Eq at 1-25; Davies AJA at 27 DECISION : Appeal dismissed with costs.

CATCHWORDS : The respondent worked as a runner on a recycling truck. Whilst working an accident occurred and the respondent was found on the highway unconscious. Although no one saw exactly what happened, and the respondent could not remember what happened, the trial judge inferred that a tree branch was likely to have knocked the respondent off the truck, which was travelling too fast. EVIDENCE- No direct evidence- Whether sufficient evidentiary basis for inferences drawn- Grounds on which tribunal of fact entitled to draw inference. CASES CITED : Incorporated Nominal Defendant v Knowles [1987] VR 138 PARTIES : Progressive Recycling Pty Limited (Appellant) Craig Eversham (Respondent) FILE NUMBER(S) : CA 40015/03 COUNSEL : J D Hislop QC and D Ronzani (Appellant) P Hennessy SC and P Frame (Respondent) SOLICITORS : Blake Dawson Waldron (Appellant) W D Hunt & Associates (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 9026/01 FILE NUMBER(S) : LOWER COURT Certoma ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40015/03

IPP JA YOUNG CJ in EQ DAVIES AJA

Friday 12 September 2003 PROGRESSIVE RECYCLING PTY LTD v CRAIG EVERSHAM Judgment 1 YOUNG CJ in EQ: This is an appeal from Certoma ADCJ who gave a verdict for the plaintiff/respondent for $958,341.96 for damages for personal injuries. 2 Shortly before receiving the injury the respondent was one of a team of three working on a recycling truck similar to a garbage truck picking up waste from bins along the Great Western Highway at St Marys. At the relevant time the truck was proceeding west along that highway. The accident happened on 10 April 1997. 3 Apart from the respondent there was on board the truck the driver Mr Coughlan and another observer Mr Kaleti both of whom when the accident happened were in the cabin and did not observe how the plaintiff, as he undoubtedly did, came off the platform at the rear of the truck, fell on to the road and was rendered unconscious. The plaintiff himself has no recollection of the accident. 4 The learned judge said relying on the police report compiled by Senior Constable James Miller that, "The driver stopped at a recycling bin along the highway, the plaintiff got off the truck, emptied the bin into the truck and on hearing, the plaintiff call out, `Go' (a runner on the rear platform being out of the driver's vision) the driver continued on. When the driver reached the next bin along the highway the driver stopped and waited a while, and on not hearing the plaintiff call out, `Go', Kaleti got off the truck to investigate and the plaintiff was not there. The plaintiff was found about 200m behind the truck along the highway unconscious on the roadway. "Senior Constable Miller observed that there were a number of trees along the side of the road (as was also evident from the photographic evidence) and 17m east of the plaintiff there was a tree branch in the gutter that appeared to be freshly broken from a tree next to the roadway." 5 His Honour had relatively little material to work on because no one had witnessed the accident and he needed to make inferences from the surrounding circumstances. He said: "It can be inferred from the facts that the plaintiff probably fell from the platform at the rear of the truck for either or both of two reasons: firstly, that the truck which was travelling close to the gutter without keeping any or a proper lookout, collided with a roadside tree whose branch which was found close to the plaintiff, struck the plaintiff causing him to fall to the ground; and, secondly, that the platform at the rear of the vehicle was not maintained in a safe and proper manner, the diminished foothold causing the plaintiff to fall. Although unnecessary to the second conclusion given the defective condition of the platform, it can, moreover be inferred that, as a result of the diminished foothold, a slight movement or jerk in the truck's progress would have caused the plaintiff to fall. Though the driver in his statement to the police claimed to be driving at 10 kph, and Kaleti in his statement said that the driver was not doing more than 20 kph (the speed that the driver stated he was not permitted to exceed under Workcover requirements) the plaintiff gave evidence of his experience that the drivers (in similar road conditions as on the day of the accident) often travelled at 40 to 50 kph. In the present case where the truck was travelling along the highway and (according to the evidence of Miller and the police reports) had travelled about 370m from the previous pick-up point, it is probable that the truck was travelling in accordance with the plaintiff's past experience at a speed in excess of 20 kph. This was a dangerous speed especially where there was an unsafe foothold because of the faulty platform." 6 On this appeal Mr J D Hislop QC and Mr D Ronzani appeared for the appellant and Mr P Hennessy SC and Mr P Frame appeared for the respondent. The basic question on this appeal which is only on the question of liability is whether there was sufficient evidentiary basis for the inferences which his Honour drew. 7 It should be noted that authority is clear that particularly in a case where there is no direct evidence a tribunal of fact is entitled to draw inferences from even slim circumstantial facts that exist so long as that goes beyond speculation. A prime example is Incorporated Nominal Defendant v Knowles [1987] VR 138 where the Victorian Full Court upheld a verdict based basically on inferences drawn merely from the presence of a piece of timber on the Princes Highway near Traralgon. 8 The photograph of the platform of the truck on which the respondent had been standing which occurs at various places in the appeal papers particularly Black p 97 shows that it leans slightly backward, that is, towards the road at the back of the truck and that although there are two platforms the one with which we are concerned is that which is on the left hand side of the truck. The photograph shows a larger man than the plaintiff (the plaintiff was described as a short, jockey-type man) holding onto the truck with his hand partially along the rear left hand side of the truck. Even taking account of the difference in stature between the man in the photograph and the plaintiff it can easily be seen that one only has to lean slightly to the left to project past the left hand side of the vehicle. 9 The appeal papers contain photographs of the trees along the relevant stretch of road taken two months after the accident. They show foliage right up to the near side of the highway, but projecting over the highway only above the height of the truck. We do not know just what was the state of these trees as at the date of the accident, whether there were any loose or projecting branches at truck level or otherwise. However, Senior Constable Miller did not observe any damage to the truck when he attended the scene of the accident. 10 So far as the speed of the truck is concerned Mr Hislop said in his written submissions that: "The only evidence as to speed was that of the driver Mr Coughlan who said that he was driving along the lane closest to the gutter at about ten kph and the other runner Mr Kaleti who said Mr Coughlan did not drive over twenty kph and that the truck was proceeding slowly to the next pick up." 11 Mr Hislop then noted that although there has been some criticism of the fact that these two witnesses were not called their evidence by statement was actually adduced by the respondent as part of his case. Mr Hislop says that his Honour was not entitled on that evidence to conclude that just because the respondent's previous experience of the truck at the relevant time was travelling at a speed in excess of twenty kilometres per hour when it was going along a highway that it did so on this particular occasion. 12 It seems to me that there was indeed insufficient material from which his Honour could have inferred that the truck was travelling in excess of twenty kilometres per hour. However, this is not critical to his Honour's finding and there are other circumstances which to my mind justify the general inferences that his Honour drew. The basic point is of course whether the driver kept a proper lookout for obstructions such as projecting parts of a tree which might affect the runner whom he knew was holding onto the rear of the truck as it traversed the highway. 13 Mr Kaleti in his statement said that on that day Mr Coughlan was driving and the respondent and he himself were collecting recyclable material from the kerbsides. At the relevant time the witness was in the cabin and the respondent was riding on the rear of the truck: "We had just about finished the run and we thought we would only have a couple of more stops to make and we turned into the Great Western Highway from Marsden Street and we stopped for a pick up about 30 metres along from Marsden Street. Craig [the respondent] hopped off the back and threw the glass into the truck and hopped back on again and we proceeded slowly to the next pick up. There are a lot of trees along the roadway there and at one point I heard a bang which I thought was probably a branch hitting the truck. When we reached the next pick up between Fleming and Monfarville Street David stopped the truck and we waited for Craig to get off and pick up the collection. We waited a little while but did not see Craig so I got out and went to the back of the truck. As I recall the top part of one of the back doors was open and latched to the side of the truck while the other door on the bottom of the passenger side rear door was closed." 14 As I said, Senior Constable Miller called at the scene of the accident and made inspections of the vehicle. He called at the appellant's depot the next day. He there saw Mr Vitticker who was the son-in-law of Mr and Mrs Gregory who appear to be the proprietors of the shares in the appellant company. Mr Vitticker was not called to give evidence. Senior Constable Miller said that when he inspected the truck at the depot the next day he noticed that the state of the platform was significantly different to that which he had observed the previous day, the previous day it was loose, now it was tight. He also found that the people he spoke to at the depot were reluctant to help the police with their inquiries. His Honour said: "The evidence of Constable Miller was that the subject platform was loose and moved up and down, and sideways, and sloped downward away from the truck. He stated the next day, when he attended the defendant's yard to inspect the truck, not only was the defendant reluctant to show him the truck but he observed that the subject platform was freshly welded and was sturdy and rigid. Although the police officer was not an expert on the design of such platforms, the fact remains that the platform was repaired by the next day and there was no evidence from the defendant's plant supervisor, who was Mr Gregory's stepson and who had accompanied the police officer at the time of the latter's inspection of the truck." 15 The evidence of Senior Constable Miller appears at Black pp 132 and following. I will not go over the matters that I have already mentioned from his Honour's judgment but it is necessary to dwell for a moment on what the officer said at pp 136-137. He was asked in chief: "Q. And you say you noticed the steps had been changed? A. Yes, I noticed that the steps had been changed. They were - the steps were lower, they had been rusty but they were now silver on the bottom. They were also - I noticed some fresh welding on them and some grinding and I shook them and they were now sturdy and rigid and solid." 16 The senior constable then related a conversation he had with Mr Vitticker and he was asked after that: "Q. ... now was it abundantly clear to you that in fact the steps had been changed? A. Yes." 17 Mr Hislop says that the judge's view with respect to this evidence was in error. He particularly challenges his Honour's statement that the subject platform was freshly welded when the officer inspected it on the day after the accident. It would seem that the appellant had sixty-seven trucks in its fleet. It would also seem that when one had to remove the material for recycling from the truck one had to remove the platforms so that the contents could be tipped out from the truck. The evidence suggested that it may be the same platform would go back onto the same truck or may be not. However, as the trucks would doubtless visit the tip at different times the odds of this happening were not explored. Furthermore, the evidence from Mr Basil Gregory showed that the practice was routinely to repair damaged platforms though he did retreat a little from this statement in cross-examination. 18 Mr Hislop indicated that it may well have been and a fair reading of the evidence on pp 136-137 was that when the officer saw the platform the next day it was in fact a different platform and there was no inference that could be drawn that there had been some clandestine repair to make everything appear in perfect order when the officer inspected it. 19 However, the police officer seems to me to have conducted himself on the basis that on the day following the accident the platform he was looking at was the same that he had seen the previous day. 20 Certainly no one pointed out to the officer that there had been any change of steps and as I said the depot manager, Mr Vitticker, who could have made any misunderstanding perfectly clear was not called by the appellant at the trial. 21 Furthermore, there is the police officer's evidence of the great reluctance of the appellant's people to cooperate with the police in this regard which would be very strange if there was a perfectly logical and innocent explanation as to why the officer was seeing something that was different to what he had seen the day before and which it must have been obvious at the trial was being given great significance. 22 Accordingly, in my view the judge was entitled to use the evidentiary material about the steps and to form the inferences that he did. 23 However, in addition to the repairs to the steps we have the clear fact that there were trees close to the left hand side of the road, the truck was driving close to the gutter and there was a freshly broken off branch of a tree found seventeen metres east of where the respondent lay on the road. Mr Hislop said that if the respondent was struck by a branch one would have expected the branch to be found much closer to where the respondent lay. This is a fair comment, but life often produces unexpected results like this and whilst it is very significant that the branch was there it is to my mind of little significance exactly where it came to rest. 24 In my view the presence of the branch is strongly suggestive that it had to do with the accident, that the branch had been removed from the tree by the truck. 25 We have then in addition to the evidence of the platform that shortly afterwards or at about the same time as the branch was detached from its tree, the respondent left the truck and ended up unconscious on the road and in my view there was sufficient material there for the learned trial judge to draw the inferences of negligence which he did draw apart from the inference of excessive speed. Accordingly, in my view the appeal should be dismissed with costs. 26 IPP JA: I agree. 27 DAVIES AJA: I agree. 28 IPP JA: The order of the Court will be that the appeal is dismissed with costs.