Nand v Croney

[1999] QCA 114

99.114

COURT OF APPEAL

de JERSEY CJ
PINCUS JA

FRYBERG J

Appeal No 7315 of 1998

JOSEPH NAND	(Defendant) Appellant
and
JASON JOHN CRONEY	(Plaintiff) Respondent

BRISBANE
..DATE 12/04/99
THE CHIEF JUSTICE: We feel sufficiently clear in
our minds about the disposition of this matter to
give a judgment now and it should be appreciated
that in our taking that course, we have of course
given, prior to coming to Court today, detailed
consideration to the written arguments presented
by both sides in comprehensive detail and the
judgment from which the appeal is brought.

The respondent sued the appellant for damages in respect of injury sustained by him on 5 March 1991 while allegedly in the course of employment by the appellant.

The respondent fell from a tree during a lopping operation and injured his wrists. He recovered a judgment against the defendant for $102,865.

The principal issue at the trial was whether the
appellant was then the respondent's employer. The
case that he was was of a circumstantial
character. The learned trial Judge heard evidence
from the respondent, the respondent's father, the
appellant's predecessor in the business, Mr Ali,
by telephone from Fiji and a Mr Kumar, to whom the

appellant claimed he had sold the business.

The Judge said he did not find any of the
witnesses "particularly dishonest or unreliable"
and formed his views on credibility "on the basis
of subsequent analysis of the evidence".
In these circumstances, in challenging His
Honour's conclusion, the appellant invokes Warren

v. Coombs (1979) 142 CLR 531.

Of the essential witnesses, the learned Judge
expressed serious doubts about the evidence of the
appellant and Mr Kumar while saying that he saw no
good reason for rejecting the evidence of the
respondent. He accordingly concluded that on the
day of the accident the respondent was employed by

the appellant.

It must be observed that His Honour has provided a
very detailed, comprehensive and apparently
careful exposition of the reasons why he accepted
or rejected various parts of the evidence.
Drawing from those reasons, it emerges that one
Ali started the business in 1986. The appellant

commenced employment with Ali the following year.

In 1989 Ali commenced a new branch of the

business at Inala with the appellant as manager.
Advertisements in the area for the business showed

the appellant's telephone number.

In 1990, Ali went to Fiji and told the appellant
to employ two other people to help him out. The
appellant employed Kumar and the respondent. The
business became unprofitable. In July 1991, Ali
directed that it be wound up. The business name
was deregistered and the appellant, as it was put
"confiscated" the chain saws and the truck used in
the business. Later on, the appellant took on
employment as a motor mechanic.
From 6 March 1991, the listing of the telephone
numbers for the business was changed with Kumar's
first and the appellant's second and that is said
to support a view that the business had been
transferred to Kumar, which the appellant asserts
and Kumar denies and of which the respondent had

no knowledge.

It is clear that the business was running as at 15
March 1991 when the accident occurred. The
question was the identity of the employer. Two
particular matters appear to have influenced His
Honour substantially to the view that it was the

appellant.

The first was the respondent's evidence which the
Judge accepted, that to the time of the accident,
they would go to the appellant's place to pick up
the jobs and that the appellant would visit the
work sites towards the end of the day and collect
payment from the client and pay the respondent and
Kumar, although apparently sometimes payment went
to the appellant via Kumar.
The plaintiff gave evidence which the Judge
accepted that this continued until just before the
accident anyway. See the transcript at pages 28
and 30, and I propose to quote some of that
evidence.

"You don't know for sure if my client was
running Neil's Tree Lopping Service do
you?-- He was running it, yes.

He was running it?-- At the time of my accident and previously before that.

He was running Neil's Tree Lopping Service,
you're absolutely sure about that?-- Yes.

How do you know?-- Because he took the money off the clients and he got the jobs for us to go to.

He took the money off the clients?-- Yes.

Now you saw him take the money off the client?-- Yes.

When did you see him do this, in what
period?-- Usually at the end of the job
within the last couple of hours.

At the end of the day when we completed the job particularly of the past few, the last few jobs, the money went to Joseph.

You say that's Mr Nand, my client?-- Yes.

When was the last time you saw that money go to him?-- When it was completed - when the job was completed.

What month was that?-- It would have been
towards just before my accident.

A week before?-- Maybe in the last month, I presume, yes.

You say the money went to him. How did that
money actually get to him? Did it go through
Mr Kumar, did it?-- Yes.

The customer gave it to Mr Kumar and he gave it to Mr Nand?-- Yes.

And then he would dish it out, is that right?-- Yes."

That evidence, obviously enough, is indicative of

the appellant's being the employer.

As to the matter to which I referred earlier with
relation to the listing of telephone numbers for
both Kumar and the appellant, the circumstance
that the appellant's number was still listed at
all, that is, after the time of an alleged
transfer of the business to Kumar, is on one view
inconsistent with the assertion that the appellant

had effected that transfer.

The second matter which on my reading of the
judgment appears particularly to have influenced
His Honour was that after the accident, the
appellant in the presence of Kumar expressed a
joint offer to pay two or three thousand dollars
compensation to the respondent to put an end to

any claim.

The Judge interpreted that as likely to have been
the appellant's own offer because of evidence that
Kumar lacked means and as Mr Griffin QC, who
appeared for the respondent submitted, it is odd
to think of the appellant's being involved in this
offer at all if he took the view that the business
had passed to Kumar in terms of the role of
employer.

Those two particular matters aside, the respondent regarded himself as employed by the appellant. He had never heard, incidentally, of Ali. The

respondent was employed directly by the appellant,
who on the evidence His Honour accepted, then
mentioned having a public liability insurance
policy and a workers compensation policy, a matter
of which both the respondent and his father gave

evidence which the Judge accepted.

Part of the Judge's expressed difficulty in
accepting the evidence of the appellant and Kumar
as to the transfer of the business to Kumar, was
the absence of documentation supporting that

claim.

His Honour expressed surprise and in my view
reasonably so, that there was no documentary
evidence of the change, particularly in the bank
records bearing in mind that payments were usually

made by cheque.

As I have said, the Judge apparently carefully
examined the matter. He described it as difficult
of resolution because of the absence of
independent reliable evidence clearly supporting
one version rather than the other. But following
an extensive analysis of the evidence and
highlighting the sorts of points which I have this
morning briefly canvassed, he concluded on the
balance of probabilities that the appellant was
the respondent's employer.
In challenging that finding and asserting that
Kumar had become the employer, the appellant made
a number of contentions factually, for example
that in his interpretation of the evidence
relating to the offer to pay two or three thousand
dollars to compensate for any claim, the learned
Judge misapprehended the evidence, that he saw too
great a significance in the change in listings of
phone numbers in the advertisements for the
business and it was suggested that he assessed the

evidence of Kumar somewhat ungenerously and so on.

I have considered those points in the context of
the written material and the judgment and
references to the transcript. None of them has
caused me to doubt the ultimate correctness of the
conclusion to which His Honour came on the balance

of probabilities.

As I have mentioned, in rejecting the evidence to
the effect that the employer was Kumar - a matter
incidentally of which the respondent was entirely
unaware and that is itself of potential
significance in terms of the disposition of the
matter - the Judge relied as he was entitled to do
at least partly on the absence of the sort of
documentary evidence one would expect to support a
transfer of business from the appellant to Kumar.
Clearly enough the respondent was employed by
someone. It was either the appellant or Kumar,
being realistic about the matter, and the
considerations to which I have earlier referred
and upon which His Honour relied provided in my
view substantial support for the conclusion that
the employer was indeed the appellant, especially
bringing into account also the lack of documentary
support for any claimed transfer to Kumar.
I consider that there was ample evidence to
support the conclusion to which the learned Judge
came. I would dismiss the appeal with costs to be
taxed.

PINCUS JA: I have come to the same view substantially for the reasons given by the Chief Justice and I agree with His Honour's view as to the orders which should be made.

FRYBERG J: I agree.

THE CHIEF JUSTICE: The appeal is dismissed with costs to be taxed.

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