Cross v Theiss Pty Ltd - [2006] NSWSC 1455

CITATION: Cross v Theiss Pty Ltd & 2 Ors [2006] NSWSC 1455
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 December 2006

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

EX TEMPORE JUDGMENT DATE: 12/04/2006

DECISION: Jury ordered; matter to be placed in the next list for mention before the Registrar; costs reserved.

CATCHWORDS: Application for jury trial - personal injuries - industrial accident - employer adjusted safety measures to reduce pollution - whether jury trial in interests of justice - jury ordered.

LEGISLATION CITED: Supreme Court Act 1970 s85(2)

CASES CITED: Malo v South Sydney District Junior Rugby Football League Ltd and Anor, [2006] NSWSC 1133
Muir v Council of Trinity Grammar School [2005] NSWSC 555
Stalyce v Cetec Holdings (Aust) Pty Ltd (2002) FCA 278
Wyong Shire Council v Shirt [1980] 146 CLR 40

PARTIES: Peter Norman CROSS (Plaintiff)
Theiss Pty Limited (First Defendant)
Xstrata Mt Owen Pty Limited (Second Defendant)
Xstrata Coal Pty Limited (Third Defendant)

FILE NUMBER(S): SC 2006/20237

COUNSEL: Mr R de Meyrick - Plaintiff
Mr Murray (solicitor) - First defendant
Mr J Downing - Second & third defendants

SOLICITORS: T D Kelly & Co - Plaintiff
Sparke Helmore - First defendant
Yeldham Lloyd Associates - Second & third defendants

Ex tempore - checked

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

MONDAY 4 DECEMBER 2006

20237/06 - PETER NORMAN CROSS v THEISS PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff was working at the Mount Irwin coal mine at Ravensworth in the Hunter Valley when the fuel cart he was driving lost grip on a ramp upon which he was then driving. It slid sideways for some distance and then rolled over. The plaintiff contends that a significant cause of the skid was the wet surface upon which the vehicle was being driven.

2 It is contended that the surface was wet in order to reduce the liberation of dust from the use of the ramp, this dust having been the subject of criticism or potential criticism in the local community about the conduct of operations at the mine. It appears that there was no operational reason for wetting or flooding the surface of the ramp. Other features said to have been unsafe were the camber and slope of the ramp and that the vehicle, itself, was not safe for use.

3 The plaintiff was injured when the vehicle turned over and suffered, amongst other things, traumatic brain injury and injuries to his neck and back, many fractures and other associated affects. It is alleged that he has continuing disability involving such problems as severe loss and impairment of short-term memory, cognitive impairment, changes to behaviour, decreased ability to concentrate, difficulties in speech, language and communication together with headaches and other pain. The extent to which the plaintiff's injuries incapacitate him for work will be a significant part of the litigation.

4 It is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Cross v Theiss Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 1455
Decision Date: 04/12/2006

CaseChat Overview and Summary

The case before the court involved Cross, an employee, and Theiss Pty Ltd, his employer, who were in dispute over personal injuries sustained by Cross in an industrial accident. The case was heard in the Supreme Court, where the central issue was whether a jury trial would serve the interests of justice. The matter came before the court following an application by Cross for a jury trial in relation to his claim for damages due to the injuries he suffered.

The court was required to determine whether the application for a jury trial was appropriate, considering the nature of the case and the interests of justice. The employer had implemented safety measures to reduce pollution, which was a factor in the accident, but the court needed to consider if a jury trial was necessary to fairly assess the evidence and reach a just outcome. The employer argued against a jury trial, suggesting that the matter could be adequately decided by a judge alone, while Cross contended that a jury was essential for a fair trial, particularly given the complexity and contentious nature of the evidence.

The court considered the factors outlined in the applicable legislation, including the complexity of the case, the nature of the evidence, and the potential impact on the fairness of the trial. The court found that the case involved complex issues of causation and negligence, which would benefit from the collective judgment of a jury. It was determined that a jury trial would ensure a fair and impartial assessment of the evidence, and thus, in the interests of justice, the court ordered that a jury trial be conducted.

The final orders of the court were that a jury trial be held to determine the merits of Cross's claim against Theiss Pty Ltd, ensuring that all relevant evidence and arguments could be thoroughly examined by a panel of jurors.

Orders