Crystal Wall Pty Ltd v Pham

Crystal Wall Pty Ltd appealed a judgment in favour of its former employee, Mr. Pham, who had sustained injuries while engaged in lifting activities. The primary judge had found that Crystal Wall Pty Ltd breached its duty of care to Mr. Pham, awarding him damages for muscular ligamentous strains and aggravation of pre-existing degenerative changes in his low back. The appeal concerned whether the primary judge's finding of negligence was open on the evidence and, alternatively, the quantum of damages awarded under the *Workers Compensation Act 1987*.

The court was required to determine two principal issues. Firstly, whether it was open to the primary judge to reasonably infer, on the whole of the evidence, that Mr. Pham's accident was due to Crystal Wall Pty Ltd's negligence, notwithstanding any inconsistencies in Mr. Pham's account of the incident. Secondly, if negligence was established, whether the primary judge's assessment of Mr. Pham's injuries as constituting 30% of a most extreme case for the purposes of calculating modified common law damages was so unreasonable as to warrant appellate intervention.

The Full Court held that it was open to the primary judge to find for Mr. Pham if, on the whole of the evidence, he could reasonably infer that the accident was due to the employer's negligence. This principle, derived from cases such as *Doonan v Beacham* and *Mummery v Irvings Pty Ltd*, allows a plaintiff to succeed if the proven facts lead to the conclusion that the injuries resulted from a breach of duty, even if the specific mechanism of injury is not definitively established or if there are alternative breaches of the same duty. However, the Court found that the primary judge's assessment of 30% of a most extreme case was unreasonable.

Consequently, the appeal was allowed. The judgment in favour of Mr. Pham for $233,391.00 was set aside, and an order was substituted for Crystal Wall Pty Ltd to pay Mr. Pham $23,000.00. Mr. Pham was also ordered to pay 50% of the costs of the appeal.