Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Small v K & R Fabrications (W'gong) Pty Ltd [2016] NSWCA 70 Hearing dates: 1 April 2016 Decision date: 08 April 2016 Before: McColl JA at [1]; Basten JA at [2]; Simpson JA at [84] Decision: (1) Dismiss the appeal.

(2) Order that the appellant pay the respondent's costs in this Court. Catchwords: TORTS – negligence – workplace injury – appeal against no finding of liability –plaintiff failed to prove how injury suffered – absent finding as to mechanism of injury, not possible to find breach of duty

APPEAL – civil – function of appellate court – judicial restraint – whether open to appellate court to disturb trial judge findings on credibility and reliability – onus of proof – whether appellate court less likely to intervene where trial judge has declined to make a finding of fact in favour of party bearing onus

APPEAL – challenge to the adequacy of trial judge's reasons – whether reasoning process compartmentalised – reasons to be read as a whole – "reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error", Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287

EVIDENCE – Jones v Dunkel inference – failure to call witnesses – whether inference valid where no reason to believe witnesses in camp of that party – unlikely witnesses would recall events or conversations Legislation Cited: Supreme Court Act 1970 (NSW), s 75A Cases Cited: Brunskill v Sovereign Marine & General Insurance Co Pty Ltd (1985) 59 ALJR 842 Chambers v Jobling (1986) 7 NSWLR 1 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Jones v Dunkel (1959) 101 CLR 298 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Nominal Defendant v Smith [2015] NSWCA 339 Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 Ship 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404 Category: Principal judgment Parties: Raymond Small (Appellant) K & R Fabrications (W'Gong) Pty Ltd (Respondent) Representation: Counsel: Mr B Dooley SC/Mr S Longhurst (Appellant) Mr R R Cavanagh SC/Ms T Berberian (Respondent)