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Goodrich Aerospace Pty Ltd v Arsic

Goodrich Aerospace Pty Ltd v Arsic

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Case Copied 18 July 2006 52 min read

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Reported Decision: 66 NSWLR 186

Court of Appeal

CITATION: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187

HEARING DATE(S): 07/07/06

JUDGMENT DATE:
18 July 2006

JUDGMENT OF: Mason P at 1; Ipp JA at 2; Tobias JA at 126

DECISION: (1) The orders made by Ainslie-Wallace DCJ are set aside (2) The issue of liability is to be remitted to the District Court for retrial (3) The damages assessed by Ainslie-Wallace DCJ are reduced by $1,755.00 to $201,522.96 (4) The costs of the trial are costs in the cause (5) Mr Arsic is to pay Goodrich the costs of the appeal (6) Mr Arsic is granted a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

CATCHWORDS: COURTS AND JUDICIAL SYSTEM - appeals against findings of fact - role of demeanour findings - witnesses from different cultural and ethnic backgrounds - role of probabilities and consistency with other evidence - failure to examine all material facts relevant to an issue - adequacy of reasons - explaining demeanour findings. D

LEGISLATION CITED: Civil Liability Act 2002 (NSW), s 15A(1)
Workers Compensation Act 1987 (NSW), s 151Z(2)

CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167
CSR Limited v Della Maddalena (2006) 80 ALJR 458
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174
Societe d'Advances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 LI L Rep 140
SRA (NSW) v Earthline Constructions Pty Limited (In Liq) (1999) 73 ALJR 306
SS Hontestroom v SS Sagaporack (1927) AC 37
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326
Walden v Black [2006] NSWCA 170
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816

PARTIES: Goodrich Aerospace Pty Limited (Appellant)
Dusan Arsic (Respondent)

FILE NUMBER(S): CA 40821/05

COUNSEL: J E Maconachie QC/D P Kelly (Appellant)
B M J Toomey QC/D J Hooke (Respondent)

SOLICITORS: Cutler Hughes & Harris (Appellant)
Beilby Poulden Costello (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1445/04

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 07/09/05

CA 40821/05
DC 1445/04

MASON P
IPP JA
TOBIAS JA
Tuesday 18 July 2006

GOODRICH AEROSPACE PTY LIMITED v DUSAN ARSIC

FACTS

The respondent, Mr Dusan Arsic, was born in Slovenia and came to Australia in 1995. In late 2002 a labour hire company, Workforce International, employed him as a storeman. At the end of October 2002, Mr Arsic was sent by Workforce International to work for Goodrich Aerospace Pty Limited (“Goodrich”), the appellant.

Mr Arsic claimed that in late January 2003 he was asked to sort aircraft wheel rims in the “reject cage” (an area used to store damaged wheel rims until a customer authorised their disposal). Mr Arsic claimed that Mr Mirsad Maslic, an engineer employed by Goodrich, instructed him to match corresponding wheel rims in the reject cage. According to…

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.

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Details

Case: [2006] NSWCA 187
Decision Date: 18 July 2006

CaseChat Overview and Summary

Goodrich Aerospace Pty Ltd appealed to the New South Wales Court of Appeal against findings of fact made by Ainslie-Wallace DCJ in the District Court. The dispute concerned the liability of Goodrich Aerospace Pty Ltd for injuries sustained by Mr Arsic.

The Court of Appeal was required to determine whether the primary judge erred in her findings of fact, particularly in relation to the credibility of witnesses and the weight given to their evidence. Key issues included the role of demeanour evidence when assessing witnesses from different cultural and ethnic backgrounds, the importance of considering probabilities and consistency with other evidence, and whether the primary judge had failed to examine all material facts relevant to the issues in dispute. The adequacy of the primary judge's reasons, including her explanation of demeanour findings, was also a central consideration.

The Court of Appeal found that the primary judge had placed undue emphasis on demeanour evidence, especially in circumstances where witnesses came from diverse cultural and ethnic backgrounds, and had not adequately considered the probabilities and consistency of the evidence with other material facts. The Court held that the primary judge's reasons were insufficient in explaining how she arrived at her findings, particularly concerning the assessment of witness credibility. Consequently, the Court of Appeal set aside the orders of the District Court, remitted the issue of liability for retrial, and reduced the damages awarded.

Orders

Orders of the court

(1) The orders made by Ainslie-Wallace DCJ are set aside (2) The issue of liability is to be remitted to the District Court for retrial (3) The damages assessed by Ainslie-Wallace DCJ are reduced by $1,755.00 to $201,522.96 (4) The costs of the trial are costs in the cause (5) Mr Arsic is to pay Goodrich the costs of the appeal (6) Mr Arsic is granted a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187
HEARING DATE(S):	07/07/06
JUDGMENT DATE:	18 July 2006
JUDGMENT OF:	Mason P at 1; Ipp JA at 2; Tobias JA at 126
DECISION:	(1) The orders made by Ainslie-Wallace DCJ are set aside (2) The issue of liability is to be remitted to the District Court for retrial (3) The damages assessed by Ainslie-Wallace DCJ are reduced by $1,755.00 to $201,522.96 (4) The costs of the trial are costs in the cause (5) Mr Arsic is to pay Goodrich the costs of the appeal (6) Mr Arsic is granted a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.
CATCHWORDS:	COURTS AND JUDICIAL SYSTEM - appeals against findings of fact - role of demeanour findings - witnesses from different cultural and ethnic backgrounds - role of probabilities and consistency with other evidence - failure to examine all material facts relevant to an issue - adequacy of reasons - explaining demeanour findings. D
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), s 15A(1) Workers Compensation Act 1987 (NSW), s 151Z(2)
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 CSR Limited v Della Maddalena (2006) 80 ALJR 458 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 Societe d'Advances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 LI L Rep 140 SRA (NSW) v Earthline Constructions Pty Limited (In Liq) (1999) 73 ALJR 306 SS Hontestroom v SS Sagaporack (1927) AC 37 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 Walden v Black [2006] NSWCA 170 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
PARTIES:	Goodrich Aerospace Pty Limited (Appellant) Dusan Arsic (Respondent)
FILE NUMBER(S):	CA 40821/05
COUNSEL:	J E Maconachie QC/D P Kelly (Appellant) B M J Toomey QC/D J Hooke (Respondent)
SOLICITORS:	Cutler Hughes & Harris (Appellant) Beilby Poulden Costello (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1445/04
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION:	07/09/05