Jeffrey v Condon

[1994] QCA 350

[1994] QCA 350

COURT OF APPEAL

FITZGERALD P
DAVIES JA
AMBROSE J

Appeal No 23 of 1994

MERVYN CHARLES JEFFREY  Appellant

and

DAVID MICHAEL CONDON  Respondent

BRISBANE

..DATE 15/08/94

JUDGMENT

THE PRESIDENT:  This is an appeal against judgment delivered in the District Court at Dalby on 6 January 1994.  The appellant, the plaintiff in the action, sued the respondent, his employer, for damages for negligence arising out of three incidents in the course of the appellant's duties as a farm labourer.  The Court has concluded that in respect of two of these incidents the matter must be retried and accordingly it is desirable that the facts not be discussed when it is unnecessary to do so.

The trial Judge's judgment dismissing the appellant's claim was firmly based on his rejection of the evidence of the appellant and his wife and son, at least where that evidence conflicted with that of the respondent.  In turn, that assessment of credibility was founded on His Honour's and quite likely the parties' confusion as to the second incident in which the appellant was injured.  His Honour found that no such incident occurred, that is, in effect, that the incident had been fabricated.  The respondent before this Court does not dispute that the appellant was injured on the relevant date, the Thursday before Easter in 1991.

That error by the trial Judge as to the appellant's credibility plainly infected his rejection of the appellant's account of what occurred in relation to all three incidents.  However, in relation to the first incident, that is of little significance.  The discrepancy between the appellant's and the respondent's accounts of what occurred on that occasion amount largely to a dispute as to how much grain had to be shifted or cleaned out of a buggy by the appellant and the weight of the bag of grain which the appellant was carrying at the time when he was injured.  The appellant's estimate, at most, was about
50 kilograms and the respondent accepted that the bag would have weighed about 45 kilograms.

That incident involved the appellant putting the material into the bag, removing it from beneath the buggy by dragging it and then lifting it and placing it on the back of a utility.  If the appellant's evidence as to what occurred was accepted in full, then in my opinion it does not indicate any negligence in relation to that incident on the part of the respondent.

I would accordingly dismiss the appeal in relation to that part of the appellant's claim but for the reasons I have indicated would allow the appeal in respect of the parts of the claim which relate to the second and third incidents.  For reasons which do not satisfactorily appear, His Honour made no assessment of damages in relation to the second and third incidents and that will also have to be retried.  I would accordingly allow the appeal and make orders to give effect to what I have indicated.

DAVIES JA:  I agree.

AMBROSE J:  I agree.

...

THE PRESIDENT:  The Court proposes the following orders:  in relation to costs, that you have the costs of the appeal, that
the respondent have one-third of the costs of the trial, and that as to the remaining two-thirds of the costs of the trial they be your costs in any re-trial.

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