Progressive Recycling Pty Ltd v Eversham - [2003] NSWCA 268

CITATION: Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268

HEARING DATE(S): 12 September 2003

JUDGMENT DATE:
12 September 2003

JUDGMENT OF: Ipp JA at 26, 28; Young CJ in Eq at 1-25; Davies AJA at 27

DECISION: Appeal dismissed with costs.

CATCHWORDS: The respondent worked as a runner on a recycling truck. Whilst working an accident occurred and the respondent was found on the highway unconscious. Although no one saw exactly what happened, and the respondent could not remember what happened, the trial judge inferred that a tree branch was likely to have knocked the respondent off the truck, which was travelling too fast. EVIDENCE- No direct evidence- Whether sufficient evidentiary basis for inferences drawn- Grounds on which tribunal of fact entitled to draw inference.

CASES CITED: Incorporated Nominal Defendant v Knowles [1987] VR 138

PARTIES :
Progressive Recycling Pty Limited (Appellant)
Craig Eversham (Respondent)

FILE NUMBER(S): CA 40015/03

COUNSEL: J D Hislop QC and D Ronzani (Appellant)
P Hennessy SC and P Frame (Respondent)

SOLICITORS: Blake Dawson Waldron (Appellant)
W D Hunt & Associates (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 9026/01

LOWER COURT
JUDICIAL OFFICER : Certoma ADCJ

40015/03

IPP JA
YOUNG CJ in EQ
DAVIES AJA
Friday 12 September 2003

PROGRESSIVE RECYCLING PTY LTD v CRAIG EVERSHAM

Judgment

1 YOUNG CJ in EQ: This is an appeal from Certoma ADCJ who gave a verdict for the plaintiff/respondent for $958,341.96 for damages for personal injuries.

2 Shortly before receiving the injury the respondent was one of a team of three working on a recycling truck similar to a garbage truck picking up waste from bins along the Great Western Highway at St Marys. At the relevant time the truck was proceeding west along that highway. The accident happened on 10 April 1997.

3 Apart from the respondent there was on board the truck the driver Mr Coughlan and another observer Mr Kaleti both of whom when the accident happened were in the cabin and did not observe how the plaintiff, as he undoubtedly did, came off the platform at the rear of the truck, fell on to the road and was rendered unconscious. The plaintiff himself has no recollection of the accident.

4 The learned judge said relying on the police report compiled by Senior Constable James Miller that,

“The driver stopped at a recycling bin along the highway, the plaintiff got off the truck, emptied the bin into the truck and on hearing, the plaintiff call out, `Go’ (a runner on the rear platform being out of the driver’s vision) the driver continued on. When the driver reached the next bin along the highway the driver stopped and waited a while, and on not hearing the plaintiff call out, `Go’, Kaleti got off the truck to investigate and the plaintiff was not there. The plaintiff was found about 200m behind the truck along the highway unconscious on the roadway.

“Senior Constable Miller observed that there were a number of trees along the side of…

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.

Continue reading Progressive Recycling Pty Ltd v Eversham

Details

AGLC: Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268
Case: [2003] NSWCA 268
Decision Date: 12 September 2003

CaseChat Overview and Summary

Progressive Recycling Pty Ltd (appellant) appealed to the Court of Appeal of New South Wales against a decision of the trial judge who found in favour of the respondent, a former employee who had suffered injury while working as a runner on a recycling truck. The respondent was found unconscious on the highway, and although the precise circumstances of the accident were not directly observed and the respondent had no recollection of the event, the trial judge inferred that a tree branch had likely knocked the respondent from the truck, which was travelling at an excessive speed.

The central legal issue before the Court of Appeal was whether there was a sufficient evidentiary basis for the inferences drawn by the trial judge regarding the cause of the respondent's fall and the speed of the truck. Specifically, the court had to determine the grounds upon which a tribunal of fact is entitled to draw an inference in the absence of direct evidence.

The Court of Appeal upheld the trial judge's findings. The court reasoned that while direct evidence was lacking, the circumstantial evidence was sufficient to support the inferences made. The judges applied the principle that a tribunal of fact is entitled to draw inferences from established facts, provided those inferences are rational and probable, even if they are not the only possible inferences. The court found that the inferences drawn by the trial judge were open to him on the evidence presented.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268
HEARING DATE(S):	12 September 2003
JUDGMENT DATE:	12 September 2003
JUDGMENT OF:	Ipp JA at 26, 28; Young CJ in Eq at 1-25; Davies AJA at 27
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	The respondent worked as a runner on a recycling truck. Whilst working an accident occurred and the respondent was found on the highway unconscious. Although no one saw exactly what happened, and the respondent could not remember what happened, the trial judge inferred that a tree branch was likely to have knocked the respondent off the truck, which was travelling too fast. EVIDENCE- No direct evidence- Whether sufficient evidentiary basis for inferences drawn- Grounds on which tribunal of fact entitled to draw inference.
CASES CITED:	Incorporated Nominal Defendant v Knowles [1987] VR 138
PARTIES :	Progressive Recycling Pty Limited (Appellant) Craig Eversham (Respondent)
FILE NUMBER(S):	CA 40015/03
COUNSEL:	J D Hislop QC and D Ronzani (Appellant) P Hennessy SC and P Frame (Respondent)
SOLICITORS:	Blake Dawson Waldron (Appellant) W D Hunt & Associates (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	9026/01
LOWER COURT JUDICIAL OFFICER :	Certoma ADCJ