Les Walkden Enterprises Pty Ltd v Menzie - [2001] TASSC 140

[2001] TASSC 140

CITATION: Les Walkden Enterprises Pty Ltd v Menzie [2001] TASSC 140

PARTIES:  LES WALKDEN ENTERPRISES PTY LTD
  ACN 076 400 493
  T/A LES WALKDEN TIMBER HARVESTING
  v
  MENZIE, Mark James

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 94/2000
DELIVERED ON:  13 December 2001
DELIVERED AT:  Hobart
HEARING DATE/S:  24 August 2001
JUDGMENT OF:  Crawford, Slicer and Evans JJ

CATCHWORDS:

Appeal and New Trial - Appeal ¾ General principles - Interference with discretion of court below - Particular cases - Other matters - Apportionment of liability - In general.
McKinlay v Reading [1977] Tas SR 7, applied.
Aust Dig Appeal and New Trial [60]

REPRESENTATION:

Counsel:
             Appellant:  D J Gunson
             Respondent:  P W Tree
Solicitors:
             Appellant:  Gunson Williams
             Respondent:  Watling Roche Lawyers

Judgment ID Number: [2001] TASSC 140
Number of paragraphs: 46

Serial No 140/2001
File No FCA 94/2000

LES WALKDEN ENTERPRISES PTY LTD ACN 076 400 493 T/A LES WALKDEN TIMBER HARVESTING v MARK JAMES MENZIE

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
SLICER J
EVANS J
13 December 2001

Order of the Court

Appeal dismissed

Serial No 140/2001
File No FCA 94/2000

LES WALKDEN ENTERPRISES PTY LTD ACN 076 400 493 T/A LES WALKDEN TIMBER HARVESTING v MARK JAMES MENZIE

REASONS FOR JUDGMENT FULL COURT CRAWFORD J
13 December 2001

At a trial of the issue of liability the respondent was successful in obtaining a judgment for damages to be assessed, subject to a reduction by 33 per cent for contributory negligence. The appellant has appealed and the respondent has cross-appealed. The facts included the following.

The accident was on 19 May 1997. The respondent was aged 29 years and he had worked for the appellant as a tree faller since 1994. He was a very competent and experienced feller. At the time of the accident he was felling trees for the appellant in a coup in the Styx Valley, known as Eagle Spur. He was alone at the time. His "bush boss" was Mr Anthony Young, another employee of the appellant. They were well-known to each other.

The accident was a simple one and was found by the learned judge to have occurred in accordance with the respondent's evidence. He had fallen a tree. There was rot and fire damage in the butt of the log. By using his chainsaw he assessed what part of the butt needed to be cut off as waste and prepared to make the cut. Under the right side of that part of the log through which he proposed to cut, there was a hole or dip in the ground, which prevented him from firmly planting his right foot in a stable position on the ground whilst using the chainsaw. A green branch was pinned under the log at that point. The branch protruded roughly at right angles to the log and over the hole or dip in the ground. The branch was about as thick as his forearm. In order to make…

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: [2001] TASSC 140
Decision Date: 13 December 2001

CaseChat Overview and Summary

Les Walkden Enterprises Pty Ltd (appellant) sought to appeal against a judgment obtained by Mark James Menzie (respondent) in the Supreme Court of Tasmania. The respondent was awarded damages for an injury sustained while felling a tree. The appellant's grounds for appeal alleged errors in law and fact in the primary judge's findings on causation, the failure to attend at the accident scene prior to the accident, and the failure to ensure that the respondent ceased work until he was wearing spiked boots. The respondent cross-appealed, claiming the primary judge erred in failing to consider whether the conduct involved taking some risk excusable in the circumstances and in failing to give reasons for the reduction of damages by 33%. The Full Court dismissed both the appeal and the cross-appeal. The Court held that the learned trial judge was entitled to determine the issue of causation in favour of the respondent and the ground was not made out. The Court also held that the learned trial judge was entitled to conclude as he did and the factual determination made by the learned primary judge was within the acceptable parameters. The Court further held that any assessment of percentage of contributory negligence resists precise reasoning and the finding of the learned trial judge was within the permitted range.

Orders