George v the Broken Hill Proprietary Company Limited & 1 ORS

The claimant sought leave to appeal from a District Court decision that dismissed his claim for damages against The Broken Hill Proprietary Company Limited ("BHP") and Convatech Pty Limited ("Convatech"). The claimant sustained an injury while employed by Convatech at a BHP facility. The claimant's proposed appeal sought orders for judgment against both opponents and remittal of the matter for determination of damages.

The legal issues before the court were whether the claimant's case was sufficiently arguable to warrant leave to appeal, particularly in the absence of direct evidence of a breach of duty of care, and whether the evidence presented was sufficient to enable the trial judge to find the burden of proof discharged. Additionally, the court was required to review the Registrar's decision to dismiss the appeal as incompetent and consider whether the grant of an extension of time for the opponents' motions was based on extraneous or irrelevant matters.

The court granted leave to appeal, finding that the claimant had raised arguable grounds. The claimant contended that the trial judge erred in finding a failure to discharge the burden of proof, submitting that a Significant Safety Occurrence Report indicated BHP's responsibility for plant cleanliness and the prevention of falling dunnage. The claimant argued that BHP's failure to present evidence of its safety systems entitled the trial judge to infer negligence, citing *Shoeys Pty Limited v Allan* for the proposition that slight evidence may suffice when material facts are peculiarly within the defendant's knowledge. Regarding Convatech, the claimant argued that the trial judge failed to consider the principles of non-delegable duty of an employer, referencing *Kondis v State Transport Authority*. The court also reviewed the Registrar's decision, finding that it was influenced by extraneous matters, specifically the opponents' unsuccessful attempts to have the appeal dismissed for want of prosecution, which were irrelevant to the competence of the appeal itself.

Consequently, the court granted leave to appeal, ordered the claimant to file his Notice of Appeal within 21 days, dismissed the opponents' motions dated 4 December 2002, and ordered the opponents to pay the claimant's costs of the motions before Registrar Schell. The costs of the leave application were to be costs in the appeal.